CIRCUMSTANTIAL EVIDENCE, USING DECEPTION IN INTERROGATIONS, AND BURNOUT - 011 -
TRANSCRIPT:
This week on the Writer's Detective Bureau. Circumstantial evidence, cops lying during interviews and burned out. I'm Adam Richardson and this is the Writer's Detective Bureau.
This is episode #11 of the Writer's Detective Bureau, the podcast dedicated to helping authors and screenwriters write professional quality crime-related fiction. Each week I mentioned that listeners helped me with covering the cost of this podcast by supporting me for as little as $2 a month through Patreon. In addition to my first supporters, Joan Raymond and Guy Alton, I also have to thank authors Natasha Bajema, Natalie Barelli, Joe Trent, Siobhan Pope, Leah Cutter and Kim Hunt Harris for their support of this podcast.
Please support them by checking out their author websites which you can find in the links inside the show notes at writersdetective.com/11. Learn how to set up your own Patreon page by visiting writersdetective.com/patreon.
Screenwriter M. Miller Davis, who you can find at mmillerdavis.com submitted a bunch of great questions this week. Miller's first question is, how often will a case be prosecuted without direct forensic evidence? The short answer is that most major cases do have some sort of forensic science evidence, and the reality is, is that modern jurors expect it. We call that the CSI effect. We live in a day and age where forensic science-based evidence is expected in most cases.
And if a case doesn't have it, that could actually be a make or break situation. But there a couple of things I need to explain to go into a bit of a longer answer about this question especially in regards to the term of direct forensic evidence. First forensic is a word that simply means applied to law. Using forensic as an adjective is modifying some field. Usually, it's forensic science. Essentially that is science applied to law. That's what forensics means.
If you are a forensic accountant, that means it's accounting applied to law. Reading into the question, obviously, we're talking about forensic science. Evidence that is based in forensic science is usually indirect evidence and another term for indirect evidence is circumstantial evidence.
When the word circumstantial evidence is used, often it's kind of a downplay of the importance. "Oh, that evidence was just circumstantial." That actually doesn't do it justice because the majority of the forensic science evidence we rely on, those CSI cases, that is circumstantial evidence.
Now, if you've ever been on a jury, you have been read jury instructions by the attorneys. This is the instructions that you're given before you go into the deliberation room. I found the jury instructions that talk about evidence for a case. And I'm going to read them here because it does a great job of explaining the difference between direct evidence and circumstantial or indirect evidence.
There are two types of evidence namely direct evidence and circumstantial evidence. In this case, the people contend that there is circumstantial evidence of the defendant's guilt. Let me explain what constitutes direct and circumstantial evidence and how they differ. Direct evidence is evidence of a fact based on a witness's personal knowledge or observation of that fact.
A person's guilt of a charged crime maybe proven by direct evidence if standing alone, that evidence satisfies a jury beyond a reasonable doubt of the person's guilt of that crime. Circumstantial evidence is direct evidence of a fact from which a person may reasonably infer the existence or nonexistence of another fact.
A person's guilt of a charged crime maybe proven by circumstantial evidence. If that evidence, while not directly establishing guilt, gives rise to an inference of guilt beyond the reasonable doubt. Let me give you an example of the difference between direct evidence and circumstantial evidence.
Supposed that in a trial, one of the parties is trying to prove that it was raining on a certain morning. A witness testifies that on that morning, she walked to the subway and as she walked, she saw rain falling. She felt it striking her face and she heard it splashing on the sidewalk. That testimony of the witness's perceptions would be direct evidence that it rained on that morning.
Supposedly on the other hand, the witness testified that it was clear as she walked to the subway, that when she went into the subway and got on the train and that while she was on the train, she saw passengers come in at one station after another carrying wet umbrellas and wearing wet clothes and raincoats. That testimony constitutes direct evidence of what the witness observed and because an inference that it was raining in that area would flow naturally, reasonably and logically from that direct evidence.
The witness's testimony would constitute circumstantial evidence that it was raining in that area. The law draws no distinction between circumstantial evidence and direct evidence in terms of weight or importance. Other type of evidence may be enough to establish guilt beyond a reasonable doubt depending on the facts of the case as the jury finds them to be.
Does a fingerprint on a knife prove that the suspect killed the victim? Or are we simply inferring that this person handled the murder weapon? Again, direct evidence is based on the witness's personal knowledge and their direct testimony in court. Saying that I saw this person kill another person with a knife, that's direct evidence. The circumstantial evidence is that the suspect's fingerprint was found on the knife.
When I worked in our burglary crimes unit or property crimes unit, my commander told me of a case he had worked 20 years prior where it was a burglary and they did a fingerprint search of a filing cabinet that had been ransacked in that victim's home. They ran the fingerprint and it came back to a person that had done jail time for burglary. Pretty good lead, right?
The logical inference because it's circumstantial evidence is the fingerprint of a convict that is known to have committed burglaries in the past is inside the filing cabinet that's in a person's home that he has no correlation to. So it's pretty logical to assume that this is the burglar and that he left a fingerprint inside that filing cabinet when he was committing the burglary.
Well, it turns out, when this guy got out of prison, he went to work for, you guess it, a filing cabinet manufacturer. The fact that his fingerprints which was forensic science based were inside that filing cabinet could be explained. Does that mean that this guy is not the burglar?
It's certainly possible that he could have been the burglar but seeing as how that he had a very logical and verifiable reason for his fingerprints to be inside that other person's filing cabinet is a perfect example of reasonable doubt and why they did not file any charges against this guy. It's one of those strange cases where truth is definitely stranger than fiction.
Miller's next question is how much is an interviewer allowed to lie in order to obtain a confession, i.e. we have your fingerprints or a witness saw you at the crime scene. While we're allowed to be deceptive or use a ruse, we cannot be coercive. And that means the confession must be voluntary. There's a lot of case law like Miller versus Fenton or Florida versus Cayward that guides law enforcement as to what to steer away from.
But the law on it is actually still rather unclear. The basic principle is that that ruse or deception cannot "shock the conscience of the court". For instance, in Florida versus Cayward, it involved the interview of a 19-year-old suspect in a rape and murder and the police had falsely told Cayward that they had the victim's underwear scientifically tested and that the results basically showed some biological proof that it was from him.
And they also showed him a false lab report of those results. In that case, the court held that that lie, the verbal lie of saying that they had these results, that was lawful but the false documents, those were not. The big concern there is the concern like a false DNA lab result in your story that shows that the suspect is guilty, that kind of false document could very easily make it into a case file and be mistaken as evidence. So we're not to create like fabricate false evidence.
But that said, we do have a lot of latitude in how deceptive we can be when talking to a suspect. But from a strategic point, it's better to ask open-ended leading questions rather than an outright lie because you risk the suspect knowing that you're bluffing.
If I am interviewing a burglar or interviewing a murderer and, "I say I have your fingerprints or I have your semen," he knows that I'm lying because he's thinking if he's the guilty guy, "No, you don't because I wore gloves or I wore a condom." You have to be very careful when you're making that lie or that deception or that ruse.
If I was in that situation as I have been many times, rather than saying, "I have X," and risk your suspect knowing that you're bull shitting him, you're better off saying, "We lifted fingerprints at the scene. Are they going to come back to you?" Or, "I'm going to be getting lab results any day now. Are we going to find your DNA?"
Those are the kind of psychological pressures we can use but it doesn't risk you being found out that you're overstepping what you do know and your suspect knowing that you really are grasping at straws. You have to be very clever in where you use an outright lie. You have to mitigate that kind of risk because once they know you're lying, they're just going to stop talking to you altogether.
Miller's next question is, "Is there a higher burnout rate in any specific division?" This really depends on the person. For me, it was sex crimes. When I worked in our major crimes unit, I worked a lot of sex crimes. And that really burned me out. I had no problem working robberies and homicides but with the sex crimes, it burned me out because I felt like I couldn't do enough for the victims that I was interacting with.
And a lot of this has to do with my motivation for becoming a cop, some stuff that happened to a very close friend of mine in high school that really motivated me to go from, "I want to be a policeman as a little kid," to taking it seriously and being interested in going into law enforcement. And then when I was finally in the position of being able to work cases that really meant something, it literally sucked the life out of me emotionally.
And every single day of working these cases, the people are still alive, so you are working with them on surviving, on getting past some of the worst things that can happen to a person and moving on and having to sit with them as they go through a horrendous trial and reliving it.
It's very emotionally and psychologically taxing and because it was something I was a real big motivator for me to get into the career in the first place, it really took a toll on me and that was when I got to the point where I left major crimes to go into narcotics. I was never a big dope cop but I was ready to go out and have fun and work cases that were not so emotionally draining.
For me, burnout was in sex crimes but when I made that change, I worked for many years in the plainclothes assignment, not just in narcotics. But in that division, it was one of those high speed, low drag. You never know what would happen next kind of assignments. I kept a bag packed in my undercover truck because I never knew where surveillance might take me and I've ended up all over the place, ending up in San Diego or Las Vegas or Northern California.
And I was in that special ops division for 14 years and I absolutely loved that kind of work base. It was hundreds ... Actually it was literally thousands ... I can prove it by the hours on my engine on my work truck, but thousands of hours of boring surveillance punctuated by some incredible adrenalin dumps to the point that when I went on a tandem skydive, it gave me the kind of thrill that a Six Flags Amusement Park season pass holder would have on riding the big roller coaster for the umpteenth time. Seriously, it actually really worried me. I'd thrown myself out of a perfectly good airplane and it really didn't move the needle on the oh-shit-I'm-going-to-die meter.
Now, this isn't me trying to be macho or unafraid or be the tough guy. I was afraid but not in the way that we're talking like ... Not the way that you would expect. I was afraid that I'd burn out that biological fight or flight defense mechanism, that adrenalin dump to try to get me to survive. Yeah, anyway, I kind of go off on the sidetrack. I love that kind of work but I was single for the first 12 or 13 of those 14 years in that assignment.
Detectives that are married with kids and have family commitments, they often burn out on that kind of work from the stress and toll it takes on home life, either that or it leads to divorce. That kind of work also involves dealing with informants where you're dealing with the underbelly of society. We deal with the underbelly when it comes to law enforcement in general, but you're dealing with them in a very different level other than just arresting them.
When you're dealing with informants, you're the one that gets the phone call from jail when the informant has been arrested and they're desperate to work off the charge and the best informants are the biggest train wrecks. So dealing with some of those people can be very taxing as well and can lead to burnout. Try explaining to your wife why a drug-using prostitute is calling your cellphone at 1:00 in the morning and you can probably see where the stressors and burnout could come from there.
Again, it differs for everyone. I love kids. I don't have any of my own by choice but it's probably a good bet that being a school resource officer and dealing with teenagers all day long might burn me out too. It really depends on the person and their circumstance but making sure that you're in a position you're not going to get burned out on is key. Thanks for providing this week's questions, Miller. Again, check out mmillerdavis.com whenever you have a moment.
I keep talking about ConvertKit because I love using their service. If you want to increase your open rate so more people read your emails and buy your books, or if you want to learn more advanced features like how to survey your email list using link triggers and tags that probably sound a little scary but they're actually super easy and logical to use.
Or if you want to learn how to create custom, automated sequences to get more book sales in less time, then mark your calendars for October 24th at 11:00 a.m. Pacific Time, then go to writersdetectivebureau.com/webinar to register for ConvertKit's free webinar. You will learn useful tactics for using your email list to sell books regardless of whether you sign up for a ConvertKit service. I hope you'll check it out.
Again, it's October 24th at 11:00 a.m. Pacific Time which is 2:00 p.m. Eastern, 7:00 p.m. if you're in London, England, 8:00 p.m. in Johannesburg, South Africa and, yikes, 5:00 a.m. on October 25th if you're in Melbourne, Australia. The link again is writersdetectivebureau.com/webinar to register.
Thanks for listening to this episode of the Writer's Detective Bureau podcast. If you enjoy this episode, please be sure to subscribe. If you belong to a writer's group in person or online, I would love it if you'd share this podcast. This podcast is created for you, so don't be shy and submit your crime fiction questions or just say hello at writersdetective.com/podcast. Thanks again for listening and write well.
You think that's a siren. That's actually the dog next door.
First-world podcaster problems.
This is episode #11 of the Writer's Detective Bureau, the podcast dedicated to helping authors and screenwriters write professional quality crime-related fiction. Each week I mentioned that listeners helped me with covering the cost of this podcast by supporting me for as little as $2 a month through Patreon. In addition to my first supporters, Joan Raymond and Guy Alton, I also have to thank authors Natasha Bajema, Natalie Barelli, Joe Trent, Siobhan Pope, Leah Cutter and Kim Hunt Harris for their support of this podcast.
Please support them by checking out their author websites which you can find in the links inside the show notes at writersdetective.com/11. Learn how to set up your own Patreon page by visiting writersdetective.com/patreon.
Screenwriter M. Miller Davis, who you can find at mmillerdavis.com submitted a bunch of great questions this week. Miller's first question is, how often will a case be prosecuted without direct forensic evidence? The short answer is that most major cases do have some sort of forensic science evidence, and the reality is, is that modern jurors expect it. We call that the CSI effect. We live in a day and age where forensic science-based evidence is expected in most cases.
And if a case doesn't have it, that could actually be a make or break situation. But there a couple of things I need to explain to go into a bit of a longer answer about this question especially in regards to the term of direct forensic evidence. First forensic is a word that simply means applied to law. Using forensic as an adjective is modifying some field. Usually, it's forensic science. Essentially that is science applied to law. That's what forensics means.
If you are a forensic accountant, that means it's accounting applied to law. Reading into the question, obviously, we're talking about forensic science. Evidence that is based in forensic science is usually indirect evidence and another term for indirect evidence is circumstantial evidence.
When the word circumstantial evidence is used, often it's kind of a downplay of the importance. "Oh, that evidence was just circumstantial." That actually doesn't do it justice because the majority of the forensic science evidence we rely on, those CSI cases, that is circumstantial evidence.
Now, if you've ever been on a jury, you have been read jury instructions by the attorneys. This is the instructions that you're given before you go into the deliberation room. I found the jury instructions that talk about evidence for a case. And I'm going to read them here because it does a great job of explaining the difference between direct evidence and circumstantial or indirect evidence.
There are two types of evidence namely direct evidence and circumstantial evidence. In this case, the people contend that there is circumstantial evidence of the defendant's guilt. Let me explain what constitutes direct and circumstantial evidence and how they differ. Direct evidence is evidence of a fact based on a witness's personal knowledge or observation of that fact.
A person's guilt of a charged crime maybe proven by direct evidence if standing alone, that evidence satisfies a jury beyond a reasonable doubt of the person's guilt of that crime. Circumstantial evidence is direct evidence of a fact from which a person may reasonably infer the existence or nonexistence of another fact.
A person's guilt of a charged crime maybe proven by circumstantial evidence. If that evidence, while not directly establishing guilt, gives rise to an inference of guilt beyond the reasonable doubt. Let me give you an example of the difference between direct evidence and circumstantial evidence.
Supposed that in a trial, one of the parties is trying to prove that it was raining on a certain morning. A witness testifies that on that morning, she walked to the subway and as she walked, she saw rain falling. She felt it striking her face and she heard it splashing on the sidewalk. That testimony of the witness's perceptions would be direct evidence that it rained on that morning.
Supposedly on the other hand, the witness testified that it was clear as she walked to the subway, that when she went into the subway and got on the train and that while she was on the train, she saw passengers come in at one station after another carrying wet umbrellas and wearing wet clothes and raincoats. That testimony constitutes direct evidence of what the witness observed and because an inference that it was raining in that area would flow naturally, reasonably and logically from that direct evidence.
The witness's testimony would constitute circumstantial evidence that it was raining in that area. The law draws no distinction between circumstantial evidence and direct evidence in terms of weight or importance. Other type of evidence may be enough to establish guilt beyond a reasonable doubt depending on the facts of the case as the jury finds them to be.
Does a fingerprint on a knife prove that the suspect killed the victim? Or are we simply inferring that this person handled the murder weapon? Again, direct evidence is based on the witness's personal knowledge and their direct testimony in court. Saying that I saw this person kill another person with a knife, that's direct evidence. The circumstantial evidence is that the suspect's fingerprint was found on the knife.
When I worked in our burglary crimes unit or property crimes unit, my commander told me of a case he had worked 20 years prior where it was a burglary and they did a fingerprint search of a filing cabinet that had been ransacked in that victim's home. They ran the fingerprint and it came back to a person that had done jail time for burglary. Pretty good lead, right?
The logical inference because it's circumstantial evidence is the fingerprint of a convict that is known to have committed burglaries in the past is inside the filing cabinet that's in a person's home that he has no correlation to. So it's pretty logical to assume that this is the burglar and that he left a fingerprint inside that filing cabinet when he was committing the burglary.
Well, it turns out, when this guy got out of prison, he went to work for, you guess it, a filing cabinet manufacturer. The fact that his fingerprints which was forensic science based were inside that filing cabinet could be explained. Does that mean that this guy is not the burglar?
It's certainly possible that he could have been the burglar but seeing as how that he had a very logical and verifiable reason for his fingerprints to be inside that other person's filing cabinet is a perfect example of reasonable doubt and why they did not file any charges against this guy. It's one of those strange cases where truth is definitely stranger than fiction.
Miller's next question is how much is an interviewer allowed to lie in order to obtain a confession, i.e. we have your fingerprints or a witness saw you at the crime scene. While we're allowed to be deceptive or use a ruse, we cannot be coercive. And that means the confession must be voluntary. There's a lot of case law like Miller versus Fenton or Florida versus Cayward that guides law enforcement as to what to steer away from.
But the law on it is actually still rather unclear. The basic principle is that that ruse or deception cannot "shock the conscience of the court". For instance, in Florida versus Cayward, it involved the interview of a 19-year-old suspect in a rape and murder and the police had falsely told Cayward that they had the victim's underwear scientifically tested and that the results basically showed some biological proof that it was from him.
And they also showed him a false lab report of those results. In that case, the court held that that lie, the verbal lie of saying that they had these results, that was lawful but the false documents, those were not. The big concern there is the concern like a false DNA lab result in your story that shows that the suspect is guilty, that kind of false document could very easily make it into a case file and be mistaken as evidence. So we're not to create like fabricate false evidence.
But that said, we do have a lot of latitude in how deceptive we can be when talking to a suspect. But from a strategic point, it's better to ask open-ended leading questions rather than an outright lie because you risk the suspect knowing that you're bluffing.
If I am interviewing a burglar or interviewing a murderer and, "I say I have your fingerprints or I have your semen," he knows that I'm lying because he's thinking if he's the guilty guy, "No, you don't because I wore gloves or I wore a condom." You have to be very careful when you're making that lie or that deception or that ruse.
If I was in that situation as I have been many times, rather than saying, "I have X," and risk your suspect knowing that you're bull shitting him, you're better off saying, "We lifted fingerprints at the scene. Are they going to come back to you?" Or, "I'm going to be getting lab results any day now. Are we going to find your DNA?"
Those are the kind of psychological pressures we can use but it doesn't risk you being found out that you're overstepping what you do know and your suspect knowing that you really are grasping at straws. You have to be very clever in where you use an outright lie. You have to mitigate that kind of risk because once they know you're lying, they're just going to stop talking to you altogether.
Miller's next question is, "Is there a higher burnout rate in any specific division?" This really depends on the person. For me, it was sex crimes. When I worked in our major crimes unit, I worked a lot of sex crimes. And that really burned me out. I had no problem working robberies and homicides but with the sex crimes, it burned me out because I felt like I couldn't do enough for the victims that I was interacting with.
And a lot of this has to do with my motivation for becoming a cop, some stuff that happened to a very close friend of mine in high school that really motivated me to go from, "I want to be a policeman as a little kid," to taking it seriously and being interested in going into law enforcement. And then when I was finally in the position of being able to work cases that really meant something, it literally sucked the life out of me emotionally.
And every single day of working these cases, the people are still alive, so you are working with them on surviving, on getting past some of the worst things that can happen to a person and moving on and having to sit with them as they go through a horrendous trial and reliving it.
It's very emotionally and psychologically taxing and because it was something I was a real big motivator for me to get into the career in the first place, it really took a toll on me and that was when I got to the point where I left major crimes to go into narcotics. I was never a big dope cop but I was ready to go out and have fun and work cases that were not so emotionally draining.
For me, burnout was in sex crimes but when I made that change, I worked for many years in the plainclothes assignment, not just in narcotics. But in that division, it was one of those high speed, low drag. You never know what would happen next kind of assignments. I kept a bag packed in my undercover truck because I never knew where surveillance might take me and I've ended up all over the place, ending up in San Diego or Las Vegas or Northern California.
And I was in that special ops division for 14 years and I absolutely loved that kind of work base. It was hundreds ... Actually it was literally thousands ... I can prove it by the hours on my engine on my work truck, but thousands of hours of boring surveillance punctuated by some incredible adrenalin dumps to the point that when I went on a tandem skydive, it gave me the kind of thrill that a Six Flags Amusement Park season pass holder would have on riding the big roller coaster for the umpteenth time. Seriously, it actually really worried me. I'd thrown myself out of a perfectly good airplane and it really didn't move the needle on the oh-shit-I'm-going-to-die meter.
Now, this isn't me trying to be macho or unafraid or be the tough guy. I was afraid but not in the way that we're talking like ... Not the way that you would expect. I was afraid that I'd burn out that biological fight or flight defense mechanism, that adrenalin dump to try to get me to survive. Yeah, anyway, I kind of go off on the sidetrack. I love that kind of work but I was single for the first 12 or 13 of those 14 years in that assignment.
Detectives that are married with kids and have family commitments, they often burn out on that kind of work from the stress and toll it takes on home life, either that or it leads to divorce. That kind of work also involves dealing with informants where you're dealing with the underbelly of society. We deal with the underbelly when it comes to law enforcement in general, but you're dealing with them in a very different level other than just arresting them.
When you're dealing with informants, you're the one that gets the phone call from jail when the informant has been arrested and they're desperate to work off the charge and the best informants are the biggest train wrecks. So dealing with some of those people can be very taxing as well and can lead to burnout. Try explaining to your wife why a drug-using prostitute is calling your cellphone at 1:00 in the morning and you can probably see where the stressors and burnout could come from there.
Again, it differs for everyone. I love kids. I don't have any of my own by choice but it's probably a good bet that being a school resource officer and dealing with teenagers all day long might burn me out too. It really depends on the person and their circumstance but making sure that you're in a position you're not going to get burned out on is key. Thanks for providing this week's questions, Miller. Again, check out mmillerdavis.com whenever you have a moment.
I keep talking about ConvertKit because I love using their service. If you want to increase your open rate so more people read your emails and buy your books, or if you want to learn more advanced features like how to survey your email list using link triggers and tags that probably sound a little scary but they're actually super easy and logical to use.
Or if you want to learn how to create custom, automated sequences to get more book sales in less time, then mark your calendars for October 24th at 11:00 a.m. Pacific Time, then go to writersdetectivebureau.com/webinar to register for ConvertKit's free webinar. You will learn useful tactics for using your email list to sell books regardless of whether you sign up for a ConvertKit service. I hope you'll check it out.
Again, it's October 24th at 11:00 a.m. Pacific Time which is 2:00 p.m. Eastern, 7:00 p.m. if you're in London, England, 8:00 p.m. in Johannesburg, South Africa and, yikes, 5:00 a.m. on October 25th if you're in Melbourne, Australia. The link again is writersdetectivebureau.com/webinar to register.
Thanks for listening to this episode of the Writer's Detective Bureau podcast. If you enjoy this episode, please be sure to subscribe. If you belong to a writer's group in person or online, I would love it if you'd share this podcast. This podcast is created for you, so don't be shy and submit your crime fiction questions or just say hello at writersdetective.com/podcast. Thanks again for listening and write well.
You think that's a siren. That's actually the dog next door.
First-world podcaster problems.
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