This example** is in the process of being made into another case study, but you might be interested in this preview.
The issue is similar in many ways to that of the main case study. Here too, the whole prosecution case rested on a police interpretation of unintelligible utterances heard in an indistinct covert recording – backed up by some ‘circumstantial’ evidence that would never have been considered relevant without the (unjustified) police interpretation of the audio.
The key difference from the main case study, however, is that in this case, the judge accepted the defence view that the police transcript was unreliable and it was not admitted to ‘assist’ the jury with their interpretation of the covert recording.
The defendant was found not guilty, and is now walking free – though not without having spent two years and eight months in custody while awaiting trial.
It is very interesting to consider the factors in the two cases that brought about these very different results. On my understanding, they would be well accounted for by the framework established by this large-scale social sciences study of wrongful convictions.
Here’s the story
The defendant was a young woman spending an afternoon with some male friends at a warehouse they worked in. While the men messed around with the equipment downstairs, she adjourned upstairs to watch a movie and catch up on some paperwork, coming down once or twice to have a smoke, to go out and fetch lunch for them all, and so on.
Unbeknownst to her, the men were involved in a major drug-related crime. In fact the warehouse was bugged, and after a couple of hours, it was raided by police. The woman was arrested along with the men. The police case against the men was strong, and they eventually stood trial, were convicted, and are now in prison.
On listening to the covert recording, the police formed the opinion that the woman was not just involved in the crime, but was actually the ring leader.
Here are some examples in which the police claimed to hear the woman using the word ‘cocaine’, and demonstrating her role as ‘boss’, giving orders to the men. Can you hear the phrases the police thought were relevant?
A major issue
For some parts of the transcript, it is possible to state with confidence that the phrases transcribed by police are not justified by the acoustics. Only rarely, however, is it possible to state with complete certainty that a particular word in the transcript was never used at all. This is because the audio is of such extremely poor quality that almost any word could have been said.
This demonstrates yet another weakness of the current legal process around interpretation of poor quality covert recordings.
Once a police transcript has put a particular word or phrase into listeners’ minds, it effectively becomes the responsibility of the defence to prove that it was not used, rather than the responsibility of the prosecution to prove it was used. This is a problem for two main reasons.
First, the poorer the quality of a covert recording, the easier it is for listeners to be ‘primed’ hear particular words, phrases or sentences that fit their expectations (based on context, or on an existing transcript) regarding what the speakers might be talking about.
Conversely, the poorer the quality of the audio, the harder it is for an expert to absolutely rule out any possibility that a particular word was not uttered at all. This is exactly parallel to other forensic sciences. Sometimes even DNA evidence is simply inconclusive.
The difference is that when DNA evidence is inconclusive, it is excluded from the trial. We don’t allow the police to say ‘it looks like X’s DNA to me; if you can’t prove that it is not, we’ll leave it to the jury to decide’.
** Again, details have been simplified to make the crucial issues clear and slightly altered to preserve anonymity.