About this time last year I sat in a conference room in a hotel in New York surrounded by lawyers, homicide and vice cops, and journalists, while an academic demonstrated the wonders of a new lie detector test he was developing – the use of MRI scans to test a person’s truthfulness. In essence, he was showing us images of the brain and explaining that when the subjects lied, certain parts of their brain glowed red on the scan and that this could be transferred to the use of MRI scans in the criminal justice system, if a person responded to a question and a certain section of their brian glowed red on the screen then they were lying.
As I looked around the room I was amazed at how easily all these delegates who, by nature of their professions should have been overly inquisitive and skeptical, were lapping up this information. When I raised my hand and asked if anyone else was feeling as uncomfortable as I with these findings, based on tests with those who were not people under criminal investigation, I was greeted with a looks of distain. With the exception of a homicide cop, no one else in the room seemed to have a problem with the suggestion that this was the ‘future’ of interviewing defendants.
While I accept that I am not scientifically minded and as such can be skeptical of a lot of scientific findings, my main issues with this new lie detector model were that the testing was done on students, in a controlled environment, who had volunteered to take part in the research, they were all at least college level educated, and had been given a script, and had then been told whether they had to lie or tell the truth from the script. There had been no testing of defendants of low intelligence, placed in the extremely stressful environment of a police interview room, who were sleep deprived, had recently taken illicit or prescribed drugs. Neither had there been any testing of defendants who had good reason to lie to protect themselves or others, and who knew that they were in danger of facing a lengthy prison sentence.
Even worse, the fact that all of these people, who should have known better than just to accept findings without questioning them, had collectively accepted the findings, made me realize that a jury would be unlikely to question any of the findings. If the scan showed a brain glowing red, the subject would have lied, and hence the jury would have no reason not to find them guilty.
And that is the reason that the lie detector must be viewed with skepticism, it is rarely tested in the exact environment. I have spoken to many defendants in the USA who have been the subject of a lie detector, many felt scared of the physical element of the test, having wires attached to a cuff on their arm and chest. The demeanor of the person carrying out the test has a big impact on many defendants, some felt that they were being encouraged to answer in a certain way by the machine operator. The format of the questions can have a big impact on the answers given by the defendant. Finally the analysis requires someone to make an assessment of the findings, I have experience of the same defendant answering the same questions in three different tests and each assessor came up with a different conclusion.
In theory, the tests that have been carried out on sex offenders may have produced some results which can be seen as positive, but can they actually also be determined as truthful? And if the lie detector is introduced in this area, how long will it be before it is introduced into the criminal justice system in other areas. Beware the dazzling effect of the mumbo jumbo…..
The case of Miller and Jackson made the headlines in the USA and Europe last week, following the US Supreme Court decision that juveniles sentenced to Life Without Parole for homicide offences should be entitled to a new sentencing hearing. On first perusal this looks like a ground breaking decision of the US Supreme Court, but in reality it will do very little for most of the inmates who were sentenced to Life Without Parole while they were juveniles, other than provide many with false hope of release.
The circumstances of Kuntrell Jackson are very similar to those of Derek Bentley – all that separates them is a big pond and 60 years. Kuntrell Jackson was 14 at the time of the homicide, he and two others decided to rob a video store. En route to the store he realized that one of the others (Derek Shields) was carrying a firearm. Kuntrell Jackson waited outside of the store while the other two went inside. Derek Shields pointed the gun at the store attendant and asked her to give up the money. While the gun was still pointed at the attendant, Kuntrell Jackson entered the store, his version of what happened next is that he said to the others “I thought you all was playing..” the State version of events is that he said to the attendant “we ain’t playing”. Shields then shot and killed the attendant.
In most US States, felony murder attributes murder to all persons who had an intention to be involved in a felony and during the course of that felony a homicide occurred, regardless of whether the person actually killed or intended to kill. The fact Kuntrell Jackson had planned to rob the video store, and during that robbery the attendant was killed by another was sufficient for transferred malice, and for him to be sentenced to Life Without Parole for homicide.
The Opinion of the US Supreme Court in Jackson (and Miller) makes it clear that it has not given Jackson a get out of jail free card. The court’s opinion is very prescriptive, and much more narrow that its previous decision (Graham) concerning Life Without Parole for non-homicide offenses. The court has made it clear that Jackson’s case should be remanded, so that the court can determine Jackson’s intent with regard to the homicide,and reconsider the sentence. The US Supreme Court even went so far as to indicate that if Jackson did have the intent for Shields to kill the store attendant, then Life Without Parole may still be an appropriate sentence. Justices Breyer and Sotomayor went further and stated that ‘..this type of transferred malice is not sufficient to justify the intent to murder that could subject a juvenile to a sentence of life without parole…..The only juveniles who may constitutionally be sentenced to life without parole are those convicted of homicide offenses who ‘kill or intend to kill’. These Justices opinions are persuasive, but not binding, and in States where the courts were happy to rule that transferred malice is sufficient to lock a kid up for life, it is highly unlikely the courts will now look kindly on these persuasive views.
Hence, Jackson, and many others like him have another chance of putting their case across in the hope of some kind of reduction in sentence, at least they are getting chance of release at some stage in their life, a chance that Derek Bentley never received.