Eyewitness identification sucks!

Yesterday I was set to try a misdemeanor battery case that provided an excellent illustration of the pathetic unreliability of eyewitness identification. There has been a bar fight. The supposed victim couldn’t identify his attacker, because he was jumped by about five guys, knocked out and couldn’t remember much. The state’s star witness was fellow who worked at the bar and supposedly walked outside to find my guy (all by himself) pummeling the victim.

I sat down next to him and asked what he saw.

“Did the prosecutor show you a photo lineup of possible assailants?” I asked.

“No.”

“Did you know the assailant from before or have you seen him after the fight?”

Again, “No”

“Do you think you’d recognize him if you saw him now?”

“Yea, I’m pretty sure I would.”

“Is that fellow sitting alone on the third bench wearing the brown tee shirt him?” I asked, gesturing at a witness in an unrelated case who looked nothing whatsoever like my client.

“Yes.”

“Really? Are you absolutely certain?”

“Absolutely! I’d swear my life on it!”

After a brief conversation with the prosecutor the matter was dismissed. But what if the witness had first been asked to identify my client when he was sitting at the defense table? And how many innocent people are in prison based on exactly this type of blunder?

I know it’s been said before, and many times, but our rules regarding eyewitness identification are in need of a major over hull–and immediately!

A client asked me what would happen if he committed a crime and then hit his head wiping out any memory of the event.

If your brain damage is so great that either (1) you cannot understand the nature of the proceedings against you; or (2) you are unable to assist in your defense, then you are unfit to proceed and cannot be prosecuted.  This does not mean you will be released, at least not right away.  People found unfit to proceed are usually turned over to a mental health facility to determine if their fitness will be restored.  If their fitness is restored, the prosecution can continue.  If not, they have to be released within one year, if lack of fitness is the only reason for holding them.

Otherwise your mental state after you commit the offense (caused by hitting your head or whatever) is irrelevant.  What matters is only whether you had had the requisite mental state for the crime when you committed it.

A client asked about Arkansas’ self-defense laws

The general common law rule followed in Arkansas is that the victim of an unlawful attack may defend himself with an amount of force proportional to the amount of force used against him.  For example, while a gun can be used against a gun or knife wielding assailant, it cannot generally be used against an unarmed attacker.

Further, once your assailant breaks off his attack you lose your right of self defense and cannot hurt him additionally.  You also generally have no right of self-defense if you are the “initial aggressor,” i.e. the first party to use unlawful force.

Additional rules apply when using deadly force in self-defense.  Arkansas requires that a person retreat (provided he can safely do so) before defending himself with deadly force, though retreat is not required if the person is in his home.  In addition, while reasonable non deadly force is allowed in defense of property, deadly force is allowed only in defense of persons.  Arkansas also permits the use of deadly force to prevent the commission of a violent felony.

Also understand that the amount of force you are allowed to use in self-defense is the minimum necessary to stop the attack.  So even when dealing with an armed attacker, if you can make him break off his attack without killing him you cannot do anything more.

False Confessions–Or Another Reason to NEVER Talk to Police

Cases where their clients confess are probably the most difficult for defense attorneys.  When a defendant confesses, juries almost always convict.  The psychology at work here is obvious: Why would someone admit to something capable of landing them in prison unless they really did it?  The proposition that only the guilty (and perhaps also occasionally the insane) confess is a common sense conclusion that seems all but inescapable.

But despite appearances many innocent (and generally sane) people have falsely confessed, and far more often than hardly anyone would imagine.  A recent study found that of three and eleven people conclusively proved to be innocent by DNA evidence, over 25% had given false confessions.

For a fascinating discussion of police interrogation techniques and why they have a often produce false confession, consult this article from the New Yorker: http://www.newyorker.com/magazine/2013/12/09/the-interview-7

The Ordeal of Marijuana Prohabition

Possession of marijuana has been criminalized in most states since the 1930s.  At long last the tide appears to be turning: Colorado and Washington have legalized recreational use of the drug.  Oregon and Alaska have enacted legislation to the same effect.  Washington, DC appears on the brink of following suit.  Nonetheless, marijuana remains illegal both under federal law and the law of most states.  In addition, there are many powerful people and organizations who feel it is their duty to enforce these laws.

The rash doctrine often uttered by prosecutors, judges, and politicians is that so long as a law is on the books it must be enforced.  Against this stands the almost universal experience of mankind.  It’s unlikely anyone who ever actually studied the growth and change of the law would hold that a statute should be enforced simply because it is on the books.  Any student of the law knows this is an idle statement made by those ignorant of history, or by those especially eager to enforce some particular law.

Most laws grew out of societal customs.  Such customs became moral attitudes and were eventually established as laws.  Long before statutes were passed, the great majority had already formed their attitudes and notions of right and wrong.  Statutes are simply a codification of existing norms.  Every once in a while, however, an active minority, motivated by religious fervor, political intolerance, or some other special interest is able pass a law not founded in common sense morality.  These laws are often draconian, arrogant, and oppressive.  They violate public conscience and the beliefs of many citizens.

No better illustration can be found than the laws enacted by the Inquisition.  Such laws were meant to enforce religious doctrines, and for better than four centuries were used to torture and execute millions of people. The reign of terror virtually annihilated freedom of thought and expression throughout most of Europe.  We now look back at the Inquisition with horror, yet we forget the means by which such laws were gotten rid of.

Religious persecution was not abolished by repealing the laws enacted to justify it.  Rather the inquisitors themselves gradually refused to enforce the laws.  They framed all manner of excuses and evasions until they finally undertook their appointments and salaries without any thought of performing the bloody services for which their offices were created.  In some cases the laws were eventually repealed.  In others they remained on the books but fell into disuse.  A few have never been formally repealed to this day.  Such laws are dead because even the most unenlightened person would refuse to torture and burn people at the stake solely on the grounds that the government must enforce all laws remaining on the books.

It should be noted that in many cases religious and legal authorities attempted to continuing enforcing the laws of the Inquisition–and related laws punishing witchcraft–after long public opinion had turned against such laws.  People continued to be brought to trial under these outdated and barbaric statutes.  Officials relaxed their efforts only when juries composed of common people repeatedly refused to convict.  The change in the law came not because the statutes were repealed, but rather because juries were too humane and decent to follow the law.

Laws against organized labor fell for the same reason.  For a time near the end of the 19th century it was a felony for one worker unhappy with his wages or working conditions to solicit another to join him in a strike.  Such laws were enacted by corporations who wanted free competition among individual workers.  They flourished until nullified by juries.  Only long afterwards were they repealed.

So-called “Blue Laws”–which made it a crime not to attend church regularly, for women to wear silk and ribbons in their hair, and to work on the Sabbath–died in the same way.  People ignored them, juries refused to convict violators, and they died on the vine.  Some were eventually repealed as part of general legislative housekeeping.  But many remain on the books to this day; they are not worth repealing because they are dead.

Laws prohibiting the possession and recreational use of marijuana need to fall to the same fate.  Marijuana prohibition–like many of the outdated laws discussed above–was enacted by a minority of citizens and was initially allowed to stand because in the 1930s the drug was unknown to the vast majority of Americans.  At the time marijuana use was primarily associated with black jazz musicians and Latin American farm workers–both distrusted racial minorities without political power.  Opportunistic politicians took advantage of such bigotry and propagated blatant falsehoods about the so-called dangers of marijuana; so the drug was banned.

Now virtually all anti-marijuana propaganda has been exposed as pseudo-science.  The drug is indisputably much less harmful than alcohol.  In fact, the only supposed dangers of marijuana capable of withstanding scientific scrutiny are that marijuana smoke–like tobacco smoke–is damaging to the respiratory system and that people under its effects–just like people drinking alcohol–should refrain from driving or operating heavy equipment.

Further, marijuana prohibition is immensely expensive in terms of law enforcement and costs of housing those incarcerated for using and possessing it–not to mention ruining the lives of many people whose only “crime” is a fondness for an essentially harmless substance.  Legalization would bring an end to these burdens and provide the government with an additional source of revenue through taxation.

I fully believe the marijuana prohibition will soon be abolished–indeed it is already underway–but for things to move promptly as they should it is not enough for people to petition the government for change.  Citizens and juries need to see the difference between morality and the law, and we all need to dispense with the dangerous naivete of thinking that laws should be enforced simply because they are on the books.

Fitting laws to people is like fitting clothes to people.  The people come first; the laws and clothes need to be fitted to them, not vice versa.  We should take a lesson from Trajan, the Roman Emperor, as shown by his correspondence with Pliny.  In the year 112 A.D. the campaign against the Christians was well underway.  Pliny, the governor of a province, wrote Trajan for instructions on how to carry out prosecutions.  Trajan replied: “Do not go out of your way looking for them.”

Capital Punishment

The real reason so many support capital punishment is that they take pleasure inflicting pain on those they hate.  Of course, they aren’t likely to admit this, but it’s very easy to prove that it is so.  Throughout most of history punishments were vindictive.  As recently as the 1700s virtually every crime–from cutting down a neighbor’s tree, to stealing his chickens, to shooting the king’s deer–was punishable solely by death.  Our ancestors were more honest with themselves and didn’t hide their motives so well.  So-called modern man thinks himself better than this and cloaks his real feelings with terms like “deterrence,” retribution,” and “justice.”

Prior to the industrial revolution good folks not only used the death penalty for most offenses, but inflicted it in the most terrible ways–flaying, crucifixion, drawing and quartering, drowning, stoning, and starving to death just to name a few.

Today such horrific physical tortures are no longer used–at least not in the west.  But they have been replaced by what may be a far crueler form of mental torment.  The condemned is notified of the exact time and manner of his death and locked in a cell.  There he has nothing to occupy his mind save counting down the months, weeks, and days that remain of his life.

As philosopher Albert Camus eloquently put it: “But what then is capital punishment but the most premeditated of murders, to which no criminal’s deed, however calculated it may be, can be compared?  For there to be equivalence, the death penalty would have to punish a criminal who had warned his victim of the date at which he would inflict a horrible death on him and who, from that moment onward, had confined him at his mercy for months.  Such a monster is not encountered in private life.”

Judges and legislators today deny they punishment from vengeance.  They confess to “indignation” for the criminal, but insist it is “righteous indignation.”  But the word “righteous” is no more than a confession of hypocrisy.  Hatred is hatred, and calling it righteous changes nothing.  It is impossible to inflict pain and torture upon someone without hating them.

Most contemporary champions of the death penalty defend the practice by insisting that killing criminals deters crime.  But there is absolutely no evidence this is true.  States without the death penalty have lower murder rates than states with it.  The difference isn’t much, but it plainly refutes the claim that killing criminals keeps others from committing crime.

Are people kept from killing because they are afraid to die?  Every murderer–except those who kill in the heat of passion–plan their escape.  They intend not to be caught, and often they are not.  So the fear of execution cannot deter them.  In crimes of passion the heat of moment extinguishes any thought of capture or punishment.  So, again, fear of death is not a deterrent.

The extend to which individuals are responsible for their behavior will always be a subject of debate.   What is clear is that most men who kill are very unstable and easily moved by outside pressure.  Crime, poverty, and ignorance go together.  When the world understands this and sees that every act is preceded by a cause or series of causes, it will seek to remove the causes of crime, and poverty, and ignorance.   Then, and only then, will the great mass of human maladjustments vanish from the world.

Welcome

My name is Greg Klebanoff and I am here to welcome you to my blog. I am an attorney and I specialize in Criminal and Family Law though I do many types of litigation. My law firm is in Fayetteville Ar. where I have been based for many years. I hope that you are here to just peruse my site, but if you need help or would like to speak to me please feel free to contact me by either registering here and briefly discussing the issue or if you would like more privacy please visit my contact page here: http://www.klebanofflaw.com/contact.html  or simply use the above Contact Us link or feel free to call me at 479-442-4700.  I would be happy to discuss any issue with you and I do offer a free initial consultation so that we can get to know each other and discuss the issue you would like me to resolve for you.

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