Natty Shafer Law

Utah lawyer for criminal and immigration cases


1 Comment

“But I’m Innocent; I Don’t Need a Lawyer”

One of the more frustrating sentiments I encounter is the notion that innocent people do not need a lawyer. I see two major problems with the sentiment. First, the police and the prosecutor do not have special abilities to recognize who is innocent and who is guilty. Second, it presupposes that only guilty people ever get put on trial. Let us take a moment to examine each of these misconceptions.

The first misconception puts a bit too much faith in police and prosecutors to spot and recognize the truth. They are only human. They are also dependent on the process working correctly, despite being overworked and underpaid.

The police, most of the time, do not personally witness crimes and they have to rely on outside witnesses. Sometimes those witnesses are simply wrong, but some also lie to the police. (Many accused people are shocked that the police are unable to see a witness is lying.) Even when the police do personally witness crimes, they are susceptible to errors of perception and judgment. The police then write a report about what they saw and what they were told. Ideally, police reports are descriptive, accurate, and complete. Often the reports are full of jargon, containing the buzzwords they think the prosecutor wants, while leaving many important facts out. A prosecutor then relies on these reports in deciding who and what to charge. In Utah, prosecutors usually do not speak to witnesses, including the police, until it is time for trial or a suppression hearing.

The second misconception is a symptom of the first: it presupposes that prosecutors always know the truth and therefore if someone is on trial, that person is guilty. Most Americans are familiar with the concept of “innocent until proven guilty,” but jury surveys suggest people often ignore this central part of our justice system. Despite being told that they must weigh all the evidence, a majority of jurors decide to issue a guilty verdict simply because someone is on trial.

Jurors think that prosecutors only go forward with cases where the prosecutor is absolutely sure the defendant is guilty. Unfortunately, prosecutors do not have that much time to dedicate to individual cases. They spend a little time looking over the case file, and maybe a few minutes speaking to the witnesses, but not much more. And due to the high turnover in many offices, a different prosecutor than the one that initially decided to file charges or who appeared at arraignment may conduct the trial. In such a system, prosecutors have little time to ponder whether a defendant is actually guilty or innocent.

In many ways, people who believe they are innocent are prone to making their cases worse. They do not see the problem with talking to the police and believe they can convince the police of their innocence. If the police have arrested you, they already think you are guilty. Also, there are so many crimes now that it is easy to admit to doing something illegal. You are not going to talk them into believing you are innocent and you may even add new charges. The innocent, most of all, need a lawyer.


Leave a comment

Demystifying Miranda

There are many misconception about the Miranda warnings police officers are supposed to give suspects after an arrest. Television and movies have done a pretty good job of educating the public about what they say, but a pretty poor job of educating the public about when they are required and what happens if an officer doesn’t give a Miranda warning. Unfortunately, this means that the average person thinks they know exactly what the warnings require, but in all likelihood, they do not. Let’s take a look at each item, one at a time.

You’ve almost certainly heard the Miranda warnings at some point in your life. In Miranda v. Arizona, the Supreme Court laid out the information that a warning needs to contain: 1) a suspect has a right to remain silent; 2) that anything a suspect says can and will be used against them in court; 3) a suspect has the right to an attorney during questioning; and 4) if the suspect cannot afford an attorney, one will be appointed for them. Police departments and individual officers can vary the wording a little, but that basic information must be conveyed, and the suspect has to understand the information. That’s simple enough and your average person knows this already.

It a bit more complicated to determine when they are required. Some people I’ve encountered believe they are required whenever someone is arrested and others believe the police have to give them whenever they want to question a suspect. Neither of those things are true. The truth is that the police must give Miranda warnings when they want to question a suspect they have already arrested. If no one is under arrest or the police have no intention of questioning anyone, then the warnings aren’t required.

Just to be clear, Miranda warnings are only required when a suspect has been arrested and the police want to question them.

The thorny issue is when someone is actually under arrest. Obviously, if the police handcuff you and tell you that you’re under arrest, then you’re under arrest. But sometimes courts will find that someone was under arrest even though the police had not formally arrested the suspect at the time. This is done to keep officers honest so they can’t interrogate a suspect they were going to arrest anyway. To determine this, the courts will look at many factors, such as whether a reasonable person would feel they could leave. That’s why it’s a good idea whenever a police officer is questioning you to ask if you are free to leave.

Finally, let’s discuss the remedy. Many people are also under the mistaken notion that if someone wasn’t read the Miranda rights, then the case will be dismissed. This almost never happens. Instead, statements made to the police after arrest but before a Miranda warning are inadmissible in court. Often a prosecutor will build a case without using the incriminating statements, or the prosecutor will move forward with a lesser charge.


Leave a comment

More on the Dubious Science of Bite Mark Analysis

A few weeks ago, I discussed some problems with bite mark analysis. It seems at least one forensic dentist agrees with me. Michael West, a Mississippi dentist, testified 81 times that bite marks on people’s bodies matched the teeth of suspects, but he no longer believes in his own specialty.

In a deposition obtained by The Clarion-Ledger, Mr. West said, “I no longer believe in bite-mark analysis. I don’t think it should be used in court. I think you should use DNA.” Previously in court he had emphasized how reliable bite mark evidence was and said that each mark was unique. Unfortunately, he was both wrong and successful at helping prosecutors get convictions. Cases he testified on are now being reviewed:

Two of those convicted in a 2001 aggravated assault case in which West testified, Leigh Stubbs and Tami Vance, are now receiving a new trial. They are both out on bond and will be arraigned today in Brookhaven.

Here’s to hoping that every state will soon prohibit this type of testimony.


1 Comment

Supreme Court to Hear Challenge on Drug Dogs

This fall, the Supreme Court of the United States will hear oral arguments in a case that challenges the use of drug-sniffing dogs to perform warrantless searches outside a suspect’s house. The case, Florida v. Jardines, arose when Miami police received a tip that Joelis Jardines was growing marijuana in his home. The police took a drug-sniffing dog around the perimeter of his house, and the dog indicated that it smelled drugs. Based on that information, the police obtained a search warrant of the house, and they found marijuana plants growing inside.

The Supreme Court has previously allowed drug-sniffing dogs to be used around cars or in the airport, but since that time a study from UC Davis has called into question the validity of drug-sniffing dogs. UC Davis recruited 18 law enforcement dogs with their human handlers for the study. Experimenters told the handlers that drugs or explosives might be present at the testing site, but neither one was present in any of the rooms. If the dogs had behaved appropriately, they would have passed through all four rooms without alerting their handlers. Only one of the 18 dogs did not falsely alert in any of the rooms.

Nick Estrada of the U.S. Navy trains a drug-sniffing dog


UC Davis researchers hypothesized that the dogs were taking cues from their handlers. If that is true, the dogs are merely relaying the preconceptions of their handlers, and it calls into question the validity of drug-sniffing dogs in any circumstance.

The Supreme Court might not speak on the validity of drug-sniffing dogs when it rules on this case, but it should. It is important that police have actual evidence when they request that a search warrant from a judge; the preconceptions of dog handlers should not be enough for probable cause.


Leave a comment

Hard Science Versus Forensics, Part 5: Ballistics

Part 1: Introduction
Part 2: Fingerprints
Part 3: Bite Mark Analysis
Part 4: Arson

Photo courtesy of Niels Noordhoek

Ballistics (sometimes called “ballistic fingerprinting”) examines the markings that firearms leave on bullets to match a bullet to the firearm that fired it. Likening it to fingerprinting is an apt analogy. Like fingerprinting, ballistics suffers from a lack of independent verification of its assumptions.

Most firearms impart spin on a fired bullet, and subtle variations in the spirals within a firearm barrel leave tiny grooves called “striations” on the bullet. The striations a particular firearm imparts are supposedly unique. A technician attempts to match a bullet of unknown origin with the barrel through which the bullet was fired. However, it has not yet been proven that the striations are unique, but we know that striations are inconsistent. Different makers of bullets have different striations, even when they go through the same barrel. Wear and tear from regular use and intentional damage to the inside of the firearm barrel can also change striations.

Like fingerprinting, ballistics has to deal with the difference between lab conditions and real world conditions. Bullets fired in a laboratory are fired into a soft medium to keep the bullet intact, but bullets found at crime scenes are often damaged from smashing into hard materials. Ballistics labs do not have definitive guidelines for how much damage to a bullet is too much.

One expert may disagree with another about whether two bullets were fired from the same firearm. It is up to individual technicians to decide whether they feel comfortable that the striations on a bullet from a crime scene sufficiently match the striations from the suspected weapon. Ultimately, a human makes a judgment call, and no agency is conducting quality control to ensure the accuracy of a technician’s determination.


1 Comment

Hard Science Versus Forensics, Part 4: Arson

Read previous posts about dubious areas of forensic science by following these links:

Part 1: Introduction
Part 2: Fingerprints
Part 3: Bite Mark Analysis

Training exercise burning

Photo courtesy of 111 Emergency


Arson investigation, unfortunately, is a field where junk science has been the rule rather than the exception. Rarely are houses intentionally set on fire to allow investigators to study the unique effects of burning houses. There are subtle yet distinct differences in how houses burn in comparison to other fires. Many arson investigators rely on their intuition and have been slow to adapt to studies that show that their assumptions are bogus.

For example, it used to be that arson investigators interpreted signs that a fire burned particularly hot as proof that an accelerant, such as lighter fluid, was used. Experiments have shown that wood and gasoline fires burn at nearly identical temperatures. A natural wood fire can reach temperatures in excess of 2,000 degrees, hot enough to melt or burn many household objects. Melted copper wiring, melted steel bedsprings, and “crazed glass” all were used as evidence of arson. But crazed glass is usually the result of rapid cooling—such as when firefighters put out a blaze—and the upper ranges of pure wood fires are enough to melt copper and steel.

Another common misconception is that floors won’t burn unless an accelerant has been used. One experiment was all it took to disprove that theory. Investigators in Duval County, Florida were trying to prove that a fire could not have happened the way a defendant claimed it did. In the process, they proved his case. They spent $20,000 to hire experts and equip a condemned house with heat and gas sensors. They lit a couch on fire, without using any accelerants, and watched what happened. The fire quickly consumed the couch and filled the room with smoke. Just four and a half minutes later the room suddenly burst into flames, including the floors, walls, and furniture. The prosecutor quickly dropped the case against the defendant.

The experimental house burned so rapidly because of “flashover.” Flashover occurs when smoke and gas in a room build, to the point where it finally explodes in flames, including the floor. The house reached over 1,000 degrees just before flashover. Before this experiment, investigators were aware of flashover, but most believed it took longer to occur, especially without a liquid accelerant. It is impossible to say how much more the field of arson investigation would advance with a few more experiments.

It is still remarkably easy to be certified as an arson investigator in many states. Some states require as little as 40 hours of training before someone can be deemed an expert in arson investigation. All over the country, there are poorly trained investigators that are still using techniques that have no basis in science.


Leave a comment

Mandatory Life Terms Unconstitutional

A judge must consider youth and the nature of the crime when they sentence juveniles to prison, the United States Supreme Court ruled yesterday in Miller v. Alabama. The case involved two young juveniles who were sentenced to life in prison without parole in their respective states, Arkansas and Alabama. Each of the men were 14 when they took part in unrelated homicides. Both states imposes life in prison without parole as a mandatory sentence, which the Court said violates the Eighth Amendment’s prohibition against cruel and unusual punishment.

The decision will not necessarily free either of the men, Kuntrell Jackson of Arkansas and Evan Miller of Alabama. Nor does it prevent judges in the future from imposing life without parole on juveniles. However, it does require judges to at least consider the age of the offender, any mitigating circumstances, as well as the nature of the crimes.

This is a small, but positive step in the realm of criminal justice. Mandatory sentencing schemes are bad for society and bad for the accused. Judges should always be able to consider the circumstances of a crime before imposing sentences. Mandatory sentences are more about revenge than about crime prevention or reform. Not allowing a judge to consider circumstances in not only unjust, it’s silly.


3 Comments

Science and Forensics, Part 3: Bite Mark Analysis

Part 1: Introduction
Part 2: Fingerprints

Bite mark analysis is an area of “science” that is unique to crime investigation. Forensic dentists are usually self-employed and have no oversight. There are no rules or regulations governing the industry, and no government entity has ever reviewed the validity of bite mark evidence.

From the start, bite mark analysis has been a dubious science. As the Chicago Tribune outlined, the field was born in 1970 when eight dentists sought to seek recognition from the American Academy of Forensic Sciences as a legitimate way to identify criminals, but they needed 10 members. They scoured the meeting rooms and were able to find 2 other pathologists who also happened to hold dental degrees.

The field hasn’t improved much since then. 42 years later and forensic dentists still disagree about whether or not a particular mark is even a bite. Thanks to DNA testing, we now know that innocent people have been convicted in cases where the primary evidence was bogus bite mark analysis.

A bite leaves an imperfect impression on the skin, and irregularities in bodies cause distortions. Furthermore, teeth, unlike DNA or fingerprints, are impermanent. Even a study conducted by the American Board of Forensic Odontology found a 63.5% rate of false identifications, and yet courts continue to accept bite mark analysis into evidence.


3 Comments

Science and Forensics, Part 2: Fingerprints

Part 1: Introduction

Tented arch patterned fingerprint Everyone “knows” that each person has a unique set of fingerprints. Fingerprinting is so ingrained in our beliefs about criminal investigation that people take it for granted that fingerprints can reliably identify a suspect. Over a century of murder mysteries in novels and—more recently—television and movies have trained us to believe that fingerprinting identifies people effectively. Mark Twain wrote about fingerprints as far back as 1894 in his novel Pudd’nhead Wilson; the main character solves a murder with his eccentric fascination with the then obscure field. Since then, countless stories have turned on the information contained in a fingerprint.

Unfortunately, the most underlying premise of fingerprinting is unproven. We don’t actually know that everyone has unique fingerprints. In fact, many of our assumptions about fingerprints are unproven and haven’t been subjected to rigorous scientific analysis. We don’t know the likelihood of misidentification. We don’t have standardized rules for how much a latent print found at a crime scene needs to resemble a rolled fingerprint on file before it is certified as a “match.” We don’t even have a national accreditation body that certifies someone as an expert in fingerprints. That makes fingerprint identification the most shocking category of dubious forensic science.

The science of fingerprinting has not advanced much since the days of Francis Galton. Galton wrote the seminal book Finger Prints and published it in 1892. He was the first person to show that a person’s fingerprints do not change during a lifetime, and he invented a taxonomy for classifying fingerprints. He was also the first to postulate that each person’s fingerprints are unique. To arrive at that conclusion, he relied on a mathematical estimation that two people would have the exact same shapes at various points within his taxonomy. He concluded that the chances for duplication were 1 in 64 billion. (In 1892, that probably seemed definitively unique, but now that there are more than 7 billion people in the world, it seems less so.) Others have reconfirmed Galton’s mathematics, but over the last 130 years, there haven’t been any thorough, independent studies to verify his hypothesis.

Even if we assume that fingerprints are indeed unique, the biggest problem with the science of fingerprints is that there aren’t uniform standards for investigators. For most jurisdictions, it is up to individual examiners to decide whether they feel comfortable that a latent print from a crime scene sufficiently “matches” a suspect’s fingerprints on file. When the police or another entity rolls someone’s fingerprints, they make sure they get every finger, in pristine condition. Latent prints are almost always incomplete, smudged, and damaged. The average latent fingerprint has only about 20 percent of the full fingertip. Experts sometimes disagree about which finger a latent print came from.

Contrary to popular media, computers do not really match a latent print to a print in a database nor is it done in seconds. Instead, IAFIS, the FBI database, recognizes patterns and narrows down the potential matches from the fingerprints on file, and it takes about an hour to complete. Ultimately, a human makes a judgment call of whether a fingerprint matches, and the opinion is more art than science. No one tests these experts to see if the conclusions they draw are consistently accurate.

Perhaps the most famous instance of a wrong identification is that of Brandon Mayfield, an attorney from Oregon who the FBI erroneously thought was connected to the Madrid subway bombings. The FBI experts said that a latent fingerprint on a plastic bag containing a detonating device was “100% verified” to be Mayfield’s, despite the fact he had never been in Spain. Fortunately for Mayfield, the Spanish authorities disagreed with the FBI’s fingerprint experts. In the aftermath of the Mayfield incident, the FBI changed the way it trains its experts to testify in court. They are no longer instructed to use the same degree of certitude or to speak of fingerprints as having been verified.


6 Comments

Science and Forensics, Part 1: Introduction

The criminal justice system has a problem. No one knows just how reliable some types of forensic evidence are. These forensic fields were developed by crime investigators instead of by scientists. Not only haven’t they been proven to be reliable, there’s a question of whether or not they’re based on science at all. Some of them are better classified as superstition, but the criminal justice system has been slow to weed them out.

Bad forensic evidence usually makes its way into Utah courtrooms through expert testimony. Someone can testify about their credentials—frequently from spurious colleges or organizations—and then the court certifies them as an expert in a particular field. Under the Utah Rules of Evidence, judges are supposed to prevent experts from testifying about junk science. Utah Rule 702 governs expert testimony, and judges are required to make sure that the specialized knowledge that the expert purports to have is “reliable,” “based upon sufficient facts or data,” and has been “reliably applied to the facts.” Most judges do not have the expertise necessary, however, to determine if an expert’s testimony actually meets that criteria.

In a previous post, I argued that juries demanding that forensic evidence accompany eyewitness testimony has been a positive trend for criminal justice. I still believe that, but it’s also important that hard science support all forensic testimony.

The best forensics were developed independently from crime investigation and have other applications. DNA evidence is the gold standard for good forensic evidence. Everyone has DNA, it’s unique (even identical twins have a little variation), it’s quantifiable, and DNA tests can be replicated from one lab to another. Through CODIS (the Combined DNA Index System), the FBI keeps a large database of individuals’ DNA to help identify suspects in certain crimes. The one drawback is, unlike on television where it takes just a few minutes, it actually takes weeks to get the results.

Some forensic fields lack applications beyond crime investigation and don’t have independent verification. Those fields need to be subjected to the scientific process. That includes independent experimentation, peer review, and the ability to replicate conclusions. Most people are surprised when they learn that much of the forensic evidence that we were led to believe is scientific, has actually never been subjected to the scientific process, and no one has proved that they are reliable. In such fields, two different experts can come to completely different conclusions or their conclusions can be influenced by what they know about the crime they are investigating.