“For the times they are a-changin”

Dr. Ofshe began by referencing the lyrics of Bob Dylan to describe how he views the changes currently taking place in the field of interrogations: “there’s a battle outside and it is ragin’, it’ll soon shake your windows and rattle your walls, for the times they are a-changin.” When he began his research around 1985, Dr. Ofshe noted that Alaska was the only state that recorded police interrogations. Today, however, sixteen states, the District of Columbia, and approximately 640 separate police agencies require the recording of interrogations. He believes that these changes will eventually allow appellate courts to actually look at what goes on in interrogations and make the kinds of decisions that judges—removed far enough from the politics of day-to-day trials—must make as part of their principal responsibility to law and justice.

Interrogations as a Source of Research

Dr. Ofshe had not considered how important the study of interrogations was until he was asked to be an expert witness in a criminal case nearly twenty-five years ago. After spending nearly 300 hours learning about interrogations in preparation for the trial, he realized that interrogation methods had evolved in darkness since the development of the widely-used third-degree method; police had been able to keep what happened in the interrogation room a “dirty little secret” for the greater part of the twentieth century. This experience led him to devote his time to studying cases involving innocent people who had been coerced into false confessions.

Dr. Ofshe described how in the early days of his research, he developed procedures and methods for de-briefing people who had undergone interrogations that were not recorded. After listening to their accounts, he would make a request to interview the interrogator, which was routinely denied, and then try to deconstruct the record. Now that most of the interrogations that he sees are recorded, he is able to better dissect the interrogation.

The Two Steps to Interrogation

These early efforts led him to publish the paper, “The Decision to Confess Falsely: Rational Choice and Irrational Action,” with Professor Richard Leo in 1997. Based on their empirical observations of transcripts of interrogations they had been collecting for years, they identified two essential steps followed in interrogations. The first step involved convincing the suspect that his or her situation was hopeless by using “evidence ploys.” In the second step, the interrogator shifted their focus towards encouraging the suspect to confess. They used a variety of tactics, ranging from the unobjectionable to clearly suppressive.

Teaching Judges How to Detect Coercion

Dr. Ofshe stressed that it is difficult to detect coercion in an interrogation, even for judges. One of his goals has been to present judges with tools so they can better understand what exactly happened in the interrogation. Dr. Ofshe discussed recent cases that show the promise of positive change in this area. He argued that these cases demonstrate how appellate courts are getting the records of interrogations and analyzing them in the same way he would analyze them, often finding techniques advocated by Reid & Associates to be coercive. Dr. Ofshe specifically mentioned a 2003 California case, a 2011 Florida case, and a 2012 Massachusetts case (Commonwealth v. Baye, 462 Mass. 246 (2012)) in which the courts suggested that it was coercion for interrogators to communicate a promise and force suspects to choose between two options that ultimately diminish the suspect’s free will.

To illustrate his points, Dr. Ofshe explained how cases involving the deaths of babies allegedly shaken to death often result in false confessions. He focused on the ongoing case involving Adrian Thomas in New York and showed footage of his actual interrogation from the soon-to-be-released documentary Scenes of a Crime. In his closing, Dr. Ofshe re-emphasized how critical it is that video recording be utilized in police interrogations if we want to reform the system.

Erica H. Dressler
Temple University School of Law, J.D. Candidate 2014

The Link Between False Confessions and Convictions

Professor Redlich focused on how false confessions ultimately lead to convictions. She argued that police documentation is specifically designed to elicit confessions and that courts frequently rely on this documentation in determining whether a confession is admissible at trial. Redlich concluded that courts should not rely on this documentation in gauging the voluntariness of a confession, since police interrogation techniques are psychologically deceptive and focused solely upon gaining a confession.

The Need for Better Interrogation Training

Jim Trainum, who currently consults on both open cases and alleged wrongful conviction cases, became interested in the topic of false confessions as a result of obtaining one himself in 1994. Trainum discussed whether law enforcement has adequately responded to the large number of false confessions uncovered in recent years. He concluded that, while interrogation training now acknowledges the issue of false confessions, a disconnect remains between interrogation training and the techniques and tactics of the interrogator.

Lessons from Abroad 

Professor Epstein talked about what the U.S. could learn from how other countries deal with the issue of false confessions. He argued that the criminal law and procedure systems of the United Kingdom, Germany, Italy, and the Netherlands have instituted safeguards that protect against obtaining false confessions without lowering conviction rates. Epstein concluded that the U.S. system should adopt certain aspects of these international approaches, in which the interrogation focuses on the investigation rather than the acquisition of a confession.

Bradley Cohen
Temple University School of Law, J.D. Candidate 2014

In 1985, Halsey was questioned about the murder of his girlfriend’s two young children, with whom he lived. During the interrogation, investigators created a statement—while being watched by one of the prosecutors—which falsely described Halsey’s involvement. Halsey remembered feeling like he was being asked the same questions over and over again. After thirty hours of interrogation, Halsey had become tired and scared. He signed the statement confessing to the murders, believing he would “fight another day.”

The statement was used as the key evidence against Halsey in the murder trial leading to his conviction. Several witnesses also testified against him, indicating his involvement. At the advice of his counsel, Halsey did not testify in his defense.

After his conviction, Halsey had to write “thousands” of letters just to find someone to advocate on his behalf. The Innocence Project eventually took his case. In 2006, DNA testing proved that Halsey was innocent and that Clifton Hall, who had testified against Mr. Halsey at trial, was the actual murderer. Halsey remained in prison until July of 2007, when he was finally declared innocent and released.

Because he is currently involved in a civil suit, Halsey could not discuss particular details about his experience but stressed that he did not believe the system itself was flawed. Instead, he believed that its rules were poorly executed by the people in it. He urged the audience to be critical if ever faced with a similar situation and to “ask questions.”

Whitney West Robson
Temple University School of Law, J.D. Candidate 2013

The Line Between Deception and Fabrication

Edward Ohlbaum, a law professor at Temple since 1985 and current Director of its Trial Advocacy program, began the discussion by sharing a story from when he served as a public defender in 1979. The defendant had confessed to a robbery because he failed a polygraph test. It appeared to be an open and shut case. Later, however, the public defender discovered that the test had been administered at a particular police station in West Philadelphia which did not typically administer polygraph tests. While at a cocktail party four weeks after the trial, the public defender learned from a detective that the defendant had actually been “hooked-up” to a Xerox machine in the station. Whenever the defendant answered a question, a piece of paper was produced by the machine that said “You lied.”

Professor Ohlbaum then asked whether the police tactics used in his story constituted police coercion. Deception, according to Ohlbaum, is used to convince the suspect of something that is completely illogical. By definition, it exists when investigators try to convince the suspect that it is in his or her own best interest to confess. Thus, the whole goal of interrogation—to convince the suspect that the consequences of confession outweigh or are more desirable than denial of involvement in the crime—is a big lie. Courts have held that police officers have the right to lie to suspects by making assertions about false evidence. Where the line has been drawn, however, is with the fabrication of actual evidence (lab reports, for example).

Ohlbaum then posed two questions to the panel. First, would it be appropriate for an investigator to feed the suspect bad facts? Sharing false information with the suspect would not necessarily contaminate the interrogation. However, if the suspect were to agree with numerous bad facts, it would suggest that the suspect is a compliant confessor, rather than a guilty one.

Second, Ohlbaum asked the panel, when the videotaping of conversations with suspects should begin—from the moment the suspect walks into the station or after the initial interview? Ohlbaum concluded his presentation by arguing that the reasons why an innocent person would confess to a crime are outside the realm of knowledge of a layperson. Therefore, he argued, that it might be time to open the door to experts to testify in order to help the jury determine whether or not a person’s confession is legitimate or if it was coerced.

The Use of Deception in Interrogations

Joseph P. Buckley III continued the panel’s discussion. Buckley is the President of John E. Reid and Associates in Chicago, Illinois and has co-authored three books, including Essentials of The Reid Technique. He argued that lying alone to suspects is not the problem. Rather it is when the lie is accompanied by other objectionable behavior during the interrogation that the interrogation becomes coercive. Therefore, he argued, an interrogation was probably reasonable if the only issue is that the investigator lied.

Although Buckley did not view lying as the problem, he did argue that investigators should only lie to suspects as a last ditch effort. If investigators lie to the suspect too early in their interrogation, according to Buckley, they run the risk that the suspect will know that the investigators are lying. This could cause the investigators to lose all credibility.

Buckley also argued that, although lying is permissible under numerous decisions of various courts, it may not always be appropriate. Therefore, the investigator must exercise judgment in utilizing a lie during an interrogation. For example, false information should not be used in an interrogation of a suspect who acknowledges that he may have committed the crime, even though he has no specific recollection of doing so. According to Buckley, the interrogator’s job is to convince the suspect to tell the truth, not to get him or her to confess. Furthermore, the use of a lie, although permitted by the courts in such a situation, may only serve to confuse the witness about his or her real involvement.

Criticism of the Reid Technique 

The panel’s discussion continued with Professor Louis Natali’s overview and critique of the Reid Technique. Prior to joining Temple, Professor Natali was First Assistant Defender at the Philadelphia Defender’s Association. He currently serves on the Board of Directors of the Pennsylvania Innocence Project.

Natali began by asking why deception is used if it is not to gain an advantage in the interrogation process. He then evaluated the behavior analysis interview strategy used in police interviews. He noted that the reasoning behind this strategy has never been subjected to peer review. Thus, it is unclear how reliable the strategy is and what its rate of error is.

He further argued that as a society we have decided that lying is inherently bad. As a result, many professions are explicitly prohibited from lying. For example, stockbrokers and real estate agents face discipline if they were to lie during the course of professional affairs. Nonetheless, we have allowed our police officers to lie to suspects in order to obtain the truth. In addition, Natali argued that there is insufficient evidence to show that treating suspects hospitably would not provide the same outcomes as lying to them does.

Professor Natali ended his presentation by discussing the Reid Technique and playing a video of its use during the interrogation of Michael Crowe, who was falsely charged with killing his sister. Initially developed as an anecdote to the third-degree method, the Reid Technique uses questions that are meant to invoke stress in the suspect. Thus, according to Professor Natali, the answers to the questions are not as important as the body language they invoke. Even though the method is not supposed to be used on children, it was used in the case of Michael Crowe, who was 14 at the time. After questioning, Crowe eventually confessed to the killing of his sister, implicating one of his friends as a co-conspirator. After both Crowe and his friend were charged with the victim’s murder, a drifter confessed that he had killed the young woman shortly before their trial. Thus, Natali argued, that the Reid Technique is frequently misused to obtain false confessions.

Emilia McKee
Temple University School of Law, J.D. Candidate 2014

Supplemental Materials on the Use of Deception in Interrogation (pdf)

Natali Behavior_Analysis_Interview_Pwrpt

Preventing Confession Contamination and False Confessions

The first speaker was Professor Leo, who discussed the case of Bruce Godschalk as an example of a false confession. Godschalk was convicted of two rapes in the 1980s, due in large part to a very detailed confession he provided to police. He was exonerated and released in early 2000, clearly showing his confession was false. Professor Leo described the many ways the police, media, witnesses, and gossip can contaminate a confession like Godschalk’s. The police, out of frustration, can sometimes feed facts to suspects through leading questions, which Godschalk’s attorney argued was the case.

In dealing with the issue of contamination, Professor Leo remarked that contamination is widespread in confessions and often difficult to detect because recording interrogations is not yet a widespread practice. Adding to the difficulty of detecting contaminated confessions, the false confessions themselves are often “complete confessions”—meaning, they contain both the “I did it” statement along with a narrative, motives, explanations, some remorse, and non-public crime facts. Leo explained that complete confessions were commonplace in twenty Innocence Project statements he examined.

Leo offered suggestions on how to prevent contaminated confessions in the first place and then how to prevent them from making their way into trial. First, he suggested that police hold back most, if not all, non-public details about a crime so during an interrogation police can compare the veracity of a suspect’s confession to the details of a crime. Second, he recommended that police record all interrogations and confessions. Finally, judges during pre-trial hearings should examine confessions and suppress ones that are contaminated.

Identifying False Confessions Pre-trial

Professor Drizen then went into detail about how confessions are contaminated and how this contamination can be identified pre-trial. He covered the same sources of contamination as Professor Leo but also included the technique of showing the suspect the crime scene. Drizen also explained how innocent knowledge on the part of the suspect can find its way into a confession. He provided another example of a false confession in the case of Steven Avery. Avery was convicted of raping and killing a young woman after his nephew Brendan Dassey provided a confession that incriminated himself and his uncle. Before Dassey’s questioning, the interrogators knew three key pieces of non-public details that Dassey would need to corroborate. The police videotaped his confession, and Drizen pointed out that the interrogators provided Dassey with the non-public details of the crime through leading questions. Drizen explained that the confession that Dassey eventually gave contained nineteen key crime facts that could all be linked to the media, gossip, and the leading questions.

Professor Drizen provided ways to challenge unreliable confessions. First, attorneys should locate the source of the contamination through police reports and the media coverage of the crime. Second, attorneys should apply the “fit” test to the confession, which is roughly defined as the degree to which the suspect’s narrative matches the provably true facts of the crime. Drizen suggested applying this test by examining what details the suspect knew that were non-public and what new information the suspect was able to provide. Finally, Drizen suggested charting the contamination by examining each fact and the possible sources of contamination. He briefly discussed the ways in which these issues can be raised pre-trial. Drizen suggested filing motions to suppress the confessions on voluntariness grounds, arguing that contamination is a form of coercion.

Legal Tools for Challenging the Reliability of Confessions

The final speaker of the panel, Peter Neufeld, discussed the ways in which an attorney can raise the question of a confession’s reliability before trial. Neufeld explained that as gatekeepers of reliability, judges could suppress contaminated confessions because the prejudicial value outweighs the probative value under Federal Rule of Evidence (FRE) 403. Neufeld found that the reliability of in or out of court identification has come under scientific scrutiny after the New Jersey Supreme Court in State v. Larry Henderson, 208 N.J. 208 (2011), changed the rules for admitting eyewitness identifications in criminal trials. The court in Henderson found that the reliability of these identifications under the test set out in Manson v. Brathwaite, 432 U.S. 98 (1977), did not stand up to scientific evidence, showing that the reliability of these identifications was based on the circumstances of the identification. The new rule in Henderson requires the judge to caution a jury that the identification may be less reliable depending on the circumstances of the identification, including the witness’s state of mind and police practice. Neufeld explained that scientific scrutiny should also come into play regarding the reliability of confessions. He also argued that judges should act as gatekeepers with regards to forensic science.

Neufeld rebutted the primary objection by prosecutors that, if judges can assess reliability of a confession pre-trial, guilty people will run free. He identified similar arguments in response to prohibiting the third degree in the 1920s and 1930s and in the 1990s when videotaping confessions was first suggested. He found that the number of confessions has not increased or decreased as a result of videotaping confessions and predicted that the same will be true if judges assess the reliability of confessions pre-trial.

Practical Considerations for Reform

Judge Van Antwerpen, the panel moderator, agreed with the panelists that police should record interrogations and confessions. He disagreed, however, with requiring that all police interviews and interrogations be videotaped due to administrative concerns. He also disagreed that the use of FRE 403 was the proper rule to determine the reliability of confessions but suggested creating a new rule more in line with FRE 609 might be appropriate.

 Alexandra Lastowski
Temple University School of Law, J.D. Candidate 2014

The Prevalence of False Confessions

Dr. Kassin began by describing the tremendous evidentiary power that confessions have. He recounted several cases in which the respective suspects confessed to committing rape, though DNA testing subsequently eliminated them as viable suspects. Presumably, such exculpatory evidence would lead prosecutors to drop the charges, but Dr. Kassin noted that the prosecutors nonetheless pursued some of these cases on the notion that the confessions were still indicative of guilt. In one case, for example, a father confessed to raping and murdering his young child. Even though DNA evidence implicated another person, the state nonetheless charged him under the theory that he let the true perpetrator into his house in order to commit the crime.

Dr. Kassin touched on how often false confessions occur. Based on his research, he noted that 37 percent of those exonerated by DNA evidence over the past five years involved a false confession. Dr. Kassin also stressed that, while false confessions are most visible in cases that involve DNA exonerees, they occur in military and corporate settings. For example, an employee of Autozone confessed to stealing $800 from the company. After the employee paid restitution and was ultimately fired, the company discovered that a clerical error was responsible for the missing funds.

Why Innocent People Confess

Dr. Kassin moved on to explain the reasons why innocent people make confessions. He identified three separate situations where this seemingly counterintuitive action occurs. First, innocent confessors are often “vulnerable,” that is, unable to understand the consequences of giving a confession. These include adolescents, mentally ill persons, those who are compliant or suggestible, and those who are in a state of grief or shock. Second, situational factors, such as the length and manner of the interrogation, can cause innocent people to confess. Third, Dr. Kassin observed that the “phenomenology of the innocent,” or one’s belief in his own innocence, leads to false confessions. As a result, those who believe they are innocent are more likely to waive their Miranda rights, respond to police questioning, supply alibis, and take polygraph tests.

The Influence of Confessions on Guilty Verdicts

Next, Dr. Kassin discussed how, in many cases, confessions trump innocence. As an example, he cited a clinical study where mock juries considered varying types of confessions. This study found that the juries were as likely to convict a person who had confessed, regardless of the extent to which the confession was coerced or the reliability of the person to whom the confession was made (e.g., one made to a jail-house snitch as opposed to a police detective).

He then offered three theories on why confessions have such a powerful influence on the determination of guilt. First, it is commonsense that a person would not confess to crime unless he was actually guilty. Not only does this theory have logical appeal, it is also bolstered by two principles of psychology—that people have an inclination to believe what they hear and particularly when the statements are against one’s self-interest. Dr. Kassin also found that people tend to consider these statements in a vacuum, without considering the pressure or coercion that the confessor experienced at the time of the statement.

Second, false confessions gain evidentiary strength when the confessor corroborates his inculpatory statement with facts that are consistent with the crime. Sometimes, however, these facts are suggested, or even supplied, by the interrogator—a practice sometimes termed “contamination.” Third, Dr. Kassin found that false confessions have the tendency to make external evidence more reliable.

Suggested Policy Reforms

Dr. Kassin concluded his remarks with suggested policy reforms. These included video recording police interrogations, altering police interrogation practices, subjecting confessions to pretrial reliability hearings, and amending exoneree-compensation statutes.

Francis Weber
Temple University School of Law, J.D. Candidate 2014

Stories exactly like this one prompted Congress to reform relief from joint and several liability for “innocent spouses.” The legislative history of innocent spouse relief reveals that Congress specifically intended the relief to benefit divorced or widowed women who were subject to unbearable tax debts resulting from the actions of their husbands. However, in its zeal to help women, Congress, in writing the statute, and the courts in enforcing Congress’ action, have forced women into a corner from which they cannot retreat. To be granted relief under the innocent spouse rules, women have to show a degrading level of helplessness or a severe level of abuse. The result is that the innocent spouse rules wind up reinforcing the stereotype of a financially inept wife, totally dependent on her husband.

I. The Development of Innocent Spouse Relief

            A. Joint and Several Liability

Congress first gave married couples the option of filing joint returns in 1918.[1] It was the intent of the Bureau of Internal Revenue that such joint filers would be held joint and severally liable, as it explained in 1923: “[A] single joint return is one return of a taxable unit and not two returns of two units on one sheet of paper.”[2] By 1938, Congress had imposed joint and several liability through statute.[3] Joint and several liability for joint filers remains in effect today,[4] which means that both spouses are individually liable for tax deficiencies arising from the return, whether or not they earned the income.

Perhaps recognizing the tension between joint and several liability and basic assignment of income principles central to our tax system, Congress crafted a joint and several liability escape clause. A demonstration that the return was signed under duress will relieve a taxpayer from joint and several liability. The taxpayer must show that (1) she was unable to resist demands to sign the return and (2) that she would not have signed the return except for the constraint applied her will.[5] Because of the difficulty in proving duress, the strictness of the joint and several liability can produce overly harsh results. In a string of embezzlement cases, courts held wives liable for unreported income from their husband’s embezzled funds for failure to prove duress,[6] a result that, in one such case, even ended with the Tax Court being “appalled.”[7]

By the late nineties, partly in response to lobbying from the American Bar Association, Congress endeavored to study the joint and several liability relief provision, § 6013(e), to determine whether it provided “meaningful relief in all cases where such relief is appropriate.”[8] Congress eventually decided that § 6013(e) did not afford meaningful relief; the former innocent spouse statute was repealed and Congress enacted § 6015 in its place.

B. Current Innocent Spouse Provision 26 U.S.C. § 6015

As currently enacted, the innocent spouse provision, contained in § 6015 of the Code, includes three main avenues for relief: (1) § 6015(b) provides relief for “all joint filers,” (2) § 6015(c) provides relief for divorced or separated taxpayers, and (3) § 6015(f) provides general equitable relief.

Under § 6015(b), a taxpayer can gain relief from joint and several liability where the taxpayer establishes that the joint return includes an understatement of tax attributable to erroneous items of the other spouse; that she did not know, and had no reason to know of the understatement when she signed the return; and that it is inequitable to hold the taxpayer liable in light of all the facts and circumstances. One of the major changes in § 6015(b) is that the understatement no longer needs to be “substantial.”

Under § 6015(c), relief for a taxpayer who is divorced or separated requires that the taxpayer had no actual knowledge of the deficiency, a less stringent standard than required under § 6015(b). Even where the taxpayer did have actual knowledge of the deficiency, under § 6015(c), the taxpayer can still get relief if she shows the return was filed under duress.

Section 6015(f) requires that relief is otherwise unavailable under §§ 6015(b) or (c), and that in light of all the facts and circumstances, it is generally inequitable to hold the taxpayer liable. Importantly, § 6015(f) is the only section that provides relief for an underpayment of correctly reported tax, as opposed to an understatement of tax.

A taxpayer seeking innocent spouse relief must first petition the Commissioner of the Internal Revenue Service. Where the IRS denies relief or does not respond within six months, the taxpayer may petition the Tax Court for review of the determination. Tax Court review is de novo.

II. Innocent Spouse Relief Perpetuates Stereotypical Roles For Women

A. Congress’s “White Knight” Intent

The legislative history of § 6015 reveals that in enacting the provision, Congress specifically intended to help rescue victimized women from pursuit by the IRS. In a daylong hearing on innocent spouse relief, Congress heard from four witnesses, all of whom were divorced women. Senator William Roth, Chairman of the Senate Committee on Finance, introduced the witnesses: “Most often, the innocent spouse is a former wife, a woman who knew little, if anything, about her husband’s financial dealings, his business concerns, let alone his debt with the IRS.”[9] Senator Roth framed the issue in terms of the need to protect women who cannot be expected to know about complicated matters such as finance and business, let alone taxes. Senator Roth painted the “long-suffering, courageous” witnesses as women who each had a sympathetic tale to tell of her nefarious ex-husband and the tax burden he left for her to bear.

The first witness, Elizabeth Cockrell, described herself as “a young Canadian immigrant wife who trusted her experienced American commodity-broker husband.” Ms. Cockrell explained that she was only guilty of trusting her husband, and in return she was hounded for over $600,000. The second witness was an immigrant from Yugoslavia who married an American at age twenty-five. She explained that she relied on her husband to do the “correct thing” because she was unfamiliar with the American tax system. After her divorce, she was on the hook for $200,000 in back taxes. Because declaring bankruptcy was against her principles, she stopped working altogether on the advice of her lawyer to make her innocent spouse petition more sympathetic. The third witness, Karen Andreasen, explained that she was “excluded from our financial dealings” because she was “busy taking care of our children.” Finally, Josephine Berman, the last witness, explained that she was being held responsible for disallowed deductions her husband claimed. After Ms. Berman walked through the substance of the deductions, arising out of her husband’s fifty percent ownership in a Subchapter S corporation, she confessed that she was “not entirely sure what this means” because she “was the homemaker and [her husband] was the breadwinner.” She was liable for over $400,000.

Each of these women was presented as completely dependent on her husband, which is perhaps what made their stories even more compelling. Following the witnesses’ testimony, Senator John Chafee remarked that the point of this reform was to tell the IRS to “stop harassing these women.” The dominant representation of a helpless woman seemed to inform Congress’s intent in passing the new law. In fact, the only reference to a husband victim was made in an effort to offer a point of contrast. It is clear from the legislative history that Congress had a specific taxpayer in mind when it eventually repealed § 6013(e) and enacted the new § 6015: the innocent ex-wife.

B. The Structure of Section 6015 Reflects Congress’s Intent

Because the language of § 6015 is gender-neutral, the statute itself is less obviously informed by preconceived notions about a woman’s role in financial affairs. However, closer inspection of the structure of the statute reveals that the requirements for relief favor disenfranchised ex-wives.

The main requirement of § 6015(b) is that the taxpayer did not know or did not have reason to know of the deficiency. This requirement encourages ignorance on the part of the petitioning spouse. The less a petitioning spouse knows about the finances, the better chance that spouse has in gaining relief. Courts have looked at a spouse’s level of education in evaluating whether she had “reason to know” of the deficiency.[10] The more educated a spouse is, the more likely the court is to deny relief on the grounds that the spouse had reason to know of the deficiency. Similarly, where a wife participates in family finances, she will almost always be deemed to have reason to know of the deficiency.

Section 6015(c) is set out to apply specifically to divorced or separated taxpayers.  Actual knowledge is a subjective inquiry: Did this taxpayer know about the deficiency? Under § 6015(b), the knowledge requirement is framed as either subjective or objective: Did the taxpayer know, or have reason to know, about the deficiency? Further, unlike § 6015(b) for divorced taxpayers, the burden of proof in § 6015(c) is on the IRS to show that the taxpayer had knowledge of the deficiency. The application of the actual knowledge standard only to § 6015(c) has the effect of encouraging a taxpayer to divorce her spouse in order to have a better chance of obtaining relief.

C. Judicial Decisions Favor Women in Stereotypical Roles

Innocent spouse relief is one of the top-ten most litigated issues for the IRS.[11] In the period since Congress enacted § 6015, eighty-five percent of taxpayers seeking relief were women.[12] The decisions of the courts hearing these cases demonstrate a bias towards granting relief to more dependent women. Statistics show that eighty-eight percent of spouses who were granted relief by the courts were separated, divorced, or widowed at the time of trial.[13] What is more interesting to note however, is that eighty-one percent of spouses granted relief were married at the time of filing the petition.[14] The interplay of these statistics suggests that courts actually grant relief more frequently to spouses who become divorced. A spouse is also better off being less educated. Relief was denied in seventy-five percent of the cases where the court found that the requesting spouse was well or highly educated.[15] A spouse’s position as the primary income earner is also a factor; however, the statistics demonstrate that courts treat this factor differently in relation to women than they do men. In cases where the husband requested relief and the wife was the primary earner, the husband never won relief; however, in cases where the wife requested relief and the husband was the primary earner, the wife won relief fifty percent of the time.[16] Courts seem to find that husbands who are not responsible for earning most of the money for the family should still be held responsible for tax deficiencies, but the same cannot be expected of women. In cases where the petitioning spouse did not work outside the home and did not handle family finances, the petitioning spouse won 68.8 percent of the time.[17]

Particularly alarming is courts’ treatment of issues of abuse. Generally, because neither the statute nor the Treasury Regulations define abuse, courts require proof of severe levels of abuse before allowing that factor to weigh in the petitioning spouse’s favor, requiring specific details of abuse, and preferably police reports. In sixty percent of cases where abuse is alleged, judges refused to find abuse.[18] Judges appear hesitant to find abuse out of fear that claims of abuse are exaggerated to avoid liability because of the “obvious incentive to vilify the non-requesting spouse.”[19]

As is demonstrated through the case statistics, courts generally seem to exercise Congress’s intent through granting or denying innocent spouse relief. The success or failure of petitions based on certain conceptions about women also has the effect of coloring the legal strategy petitioners employ, and this in turn may force women to adopt a certain role in order to gain relief from the courts.

D. Innocent Spouse Rules Reinforce Stereotypes by Affecting How Women View Themselves           

The representation of women that lurks behind the innocent spouse rules may even affect the way women view themselves. As one scholar explains:

[T]he innocent spouse provision. . . may further impact women’s choices as to the role they will play in society. In order to find reprieve from joint and several liability, many women will need to establish that they are victims—and in doing so, they will convince themselves that they are victims. . . [this] can be emotionally crippling for many women who discover too late that they are financially dependent on their husbands because of the unfortunate choices they made—choices shaped largely by our tax laws.[20]

An interesting case in point is Carol Ross Joynt, the television producer from Washington, D.C., who wrote the book “Innocent Spouse: A Memoir” and landed a feature in Vogue magazine after she successfully petitioned the court for innocent spouse relief when her wealthy husband died and left her with a $3 million tax bill.[21]

Carol Ross Joynt seemed, on the surface, to be the antithesis of the Betty Homemaker wife: she had an education, enjoyed a good job at CNN, kept her own checking account and credit cards, and even had an Emmy award. She was the modern, sophisticated woman. That is, until she was on the hook for her late husband’s tax fraud.

Ms. Ross Joynt retained Sheldon Cohen, the former IRS Commissioner who had written the innocent spouse Code provision, to represent her interests. Cohen and his partner, Miriam Fisher, prepared a report in her defense. The report was littered with statements that reflected the bias inherent in the innocent spouse provision. One passage in the defense report read, “Throughout her adult life, Carol steadfastly avoided getting involved in financial matters because she knew they were complex and she did not understand them.” Another passage insisted dramatically, “She fell in love with Howard and believed he would be able to take care of her and would never let anything happen to her. That was her Faustian pact.”

Ms. Ross Joynt said of the report: “I wasn’t proud of what the report said about me, but not because the facts were wrong. They were right. . . When the report didn’t make me feel like a fool, it made me feel like a concubine. . . There it was, the truth, I was unable to speak. . . I was a good wife, homemaker and mother. . . I didn’t ask questions. I didn’t insist on answers. I didn’t want to know. It never occurred to me there was a problem, even though, in Howard’s last year of life, so many signs were in plain view, not the least of them his offhand mention of an audit, his frequent appointments with lawyers, and his more than occasional fitful nights.” 

This was a woman who won her Emmy interviewing Charles Manson, but she never thought to ask her husband: Honey, why are we being audited by the IRS? Ms. Ross Joynt acknowledged that in the end, it was the demeaning defense report that won her the case.

Ms. Ross Joynt’s situation poses the eternal question, one that the Washington Post poignantly asked in its review of her book: “Why do allegedly smart women who competently manage their money when single blithely cede financial control the men they marry?”[22] The answer appears to be, at least in the context of an “innocent spouse,” they have to—it is the only way to convince the IRS and the courts to grant relief.

****

The legislative history of innocent spouse provisions reveals that Congress specifically had in mind divorced and victimized women when it wrote the new § 6015. The structure of the statute and the factors interpreting it afford easier relief for women who are divorced, less educated, burdened, or abused. As the case statistics demonstrate, almost all innocent spouse cases are brought by women, and the most successful petitioners are divorced, less educated, secondary income earner and ignorant of financial affairs. The tax laws relating to innocent spouse as enacted and enforced augment the misconception of married women as subordinate to their husbands by forcing women to adopt a dependent role in order to gain relief from joint and several liability. And that is putting Baby in the corner.

Elizabeth K. Blenner
J.D., Temple University James E. Beasley School of Law, 2012

The editors and staff of the Temple Law Review wish to recognize the tremendous accomplishments of the committee members, including Chair Peter J. Liacouras (former Dean of Temple Law School and President of Temple University) and Legal Advisor Robert Reinstein (also former Dean of and current professor at Temple Law School).

In honor of the award, we have reposted the Liacouras Committee Report and Recommendations, originally published in the forty-fourth volume of the Temple Law Review (then Temple Law Quarterly). Below are Professor Reinstein’s remarks on accepting the award, and a fuller history to the important role the Liacouras Committee played in integrating the Pennsylvania Bar.

-The Editors

Remarks of Professor Robert Reinstein on Receiving
The Justice Sonia Sotomayor Diversity Award on Behalf of the
Liacouras Commission

On behalf of the Liacouras Commission, I am honored to accept this wonderful award and thank the Bar Association not only for the award but also for the role that it played in creating and supporting the work of the Commission.

In 1970, I was in my second year of teaching at Temple Law School when a colleague, Professor Peter Liacouras, asked me to help a commission he chaired looking into whether there was racial discrimination in admission to the Pennsylvania Bar.  The reader of the Liacouras Commission’s report, which is published in Volume 44 of the Temple Law Review, can review its findings and recommendations.  I want to explain how the commission came into being, and the sequels to the report.

The driving force behind this commission was Judge Clifford Scott Green, then a distinguished member of the Court of Common Pleas.  For many years, Judge Green had been distressed with the virtual absence of black attorneys in the Commonwealth.  A top graduate of Temple Law School (and editor of the Law Review), Judge Green was  admitted to the Pennsylvania bar in 1952 – one of two black attorneys admitted that year and the thirty-third in the Commonwealth’s history.[1]  And 1952 was a typical year.  Between 1920 and 1970, an average of two black attorneys were admitted per year.  In 1970, there were 12,300 lawyers in the Commonwealth, of whom only 130 were African-Americans.

We remember Clifford Scott Green as an outstanding judge and humanitarian, a person who treated everyone with fairness, dignity and respect.  But Judge Green was also intolerant — he was intolerant of injustice.  The exclusion of African-Americans from the Pennsylvania bar was deplorable.  I think that the final straw for Judge Green occurred when the Dean of Howard Law School advised his students not to apply for admission to the Pennsylvania bar because black lawyers were not welcome in this State.  A shameful situation had become notorious.[2]   Judge Green asked the Chancellor of the Philadelphia Bar Association, Robert Landis, to appoint a commission to investigate the Board of Law Examiners’ practices.  Landis agreed, which was quite courageous inasmuch as the Board was appointed by the Pennsylvania Supreme Court and was chaired by a Superior Court judge.  Landis appointed Judge Green (who would later serve as a Federal District Court judge), Judge Paul Dandridge (then of the Municipal Court and later of the Common Pleas Court), Riccardo Jackson (then an attorney and later a Common Pleas Court judge), and W. Bourn Ruthrauff (an attorney who became a partner in a major law firm).

Landis wanted to appoint Judge Green as chair of the commission, but Green refused.  He insisted that, to have credibility, the chair must be a white person – and that the chair be someone who was tenacious, who would not back down in fight, and who was totally committed to equal opportunity.  Those characteristics describe Peter Liacouras, who would later become a transformative Dean of Temple Law School and the greatest President in the modern history of Temple University. At Green’s request, Landis appointed Liacouras as the chair, and the commission rightly came to bear his name.

The investigation faced daunting obstacles.  The commission did not have subpoena power, nor could it depose witnesses or conduct any other discovery.  Fortunately, however, the commission was able to obtain an enormous amount of helpful information from people of good will who were within the system and wanted change to occur.

The commission’s report was issued in December 1970.  The commission had found substantial evidence of racial discrimination in the administration of the bar examination.  It also found that the grading process was unfair to all applicants and that the examination itself lacked validity.  The commission’s recommendations were quite modest – basically to insure that the examination was graded anonymously and that professional educators participate in the construction and grading of the examination.  But the reaction to the report was divided and explosive.  Chancellor Landis and other leaders of the bar supported the report and its recommendations.  Members of the Board of Law Examiners and other judges and bar leaders denounced the report as defamatory and full of errors and lies.   In the Philadelphia Bar Association, a motion was introduced to censure the members of the commission and Chancellor Landis.[3]

The turning point came from the Bar Association.  The Board of Governors rejected the censure motion and instead accepted the report and endorsed the recommendations of the commission.  The Bar Association then put its full weight behind those recommendations, and they were implemented.

The results were immediate and astounding.  The number of black applicants admitted to the Pennsylvania bar skyrocketed, and the bar finally became integrated.  Moreover, all applicants benefitted from the adoption of the commission’s recommendations, because the bar examination and the grading process became fairer and more valid for everyone.

The Philadelphia Bar Association’s decision to choose the commission and its scrivener as the recipients of the Justice Sonia Sotomayor Diversity Award is particularly appropriate.  Speaking on behalf of the commission, I can say with certainty that these historic accomplishments would not have occurred without the Bar Association’s support – from the courageous decision of its Chancellor to appoint the commission to the determination of the Board of Governors to put the Association’s full weight behind an effort that materially advanced our precious goal of achieving equal justice under law.

In the midst of this latest patent law oscillation, Congress is also considering substantial patent reform. Legislation entailing significant patent reform has been introduced in Congress every year since 2005, and every year the proposed reforms have produced vociferous debate among the United States’ largest industries. To date, none of the patent reform bills have passed.

Patent legislation introduced this year, the “America Invents Act,”[3] incorporates a more modest set of reforms and has been met with broader backing. The America Invents Act passed the Senate in March 2011, and a similar counterpart bill passed the House in June. It appears likely that the chambers will reconcile their bills, and with the White House’s strong support, this may finally be the year that patent reform is enacted. If enacted, the America Invents Act will represent the most sweeping statutory changes to patent law in over half a century. The crucial question is whether this Act, combined with recent Supreme Court cases, will swing the patent pendulum too far once more. If history is any guide, the answer is that patent reform will be too extreme. But, there is also an argument that changes in the economic and technological environment may make this time different.

The Quest for Optimal Patent Law

To understand the current patent reform debate it is first necessary to take a step back to understand how the America Invents Act legislation developed. The essential policy behind patent law is relatively straightforward. Absent patent protection, there would be too little incentive to invent and commercialize innovation because, once introduced, anyone could copy an invention without having to compensate the inventor. Inventors, as a result, would be unable to recoup their research and development costs, and therefore would be less likely to invest time and effort into innovation in the first instance. Patent law solves this public goods problem by granting an inventor a limited monopoly on his or her invention, giving the inventor the prospect of recovering his or her costs and making a profit. The added potential for profit on innovation incentivizes greater innovation in the first instance.

That is the standard patent law story. But in the late 1990s and early 2000s, a growing number of advanced technology firms and industries began to see patent law as flawed and failing to meet its central objective of promoting innovation. Rather than perceiving a patent as providing an incentive to innovate, some began to believe that patents were creating a drag on innovation. Among the most concerned entities are large software and information technology companies who believe that patent law has run fundamentally off-track, to the detriment of innovation in their industries. Many new technology devices, such as a computer, cell phone, or software program, incorporate a vast array of technological advances. A personal computer, for example, contains technology that is the subject matter of thousands of active patents. As a result, anyone seeking to build a better computer must first license thousands of patents from potentially hundreds of different sources. In addition, patent infringement is a strict liability offense. If even a small section of code in a multi-million line computer program is held to infringe a patent, whether actually copied from the patented invention or independently discovered, the program owner can be enjoined from distributing the entire program and liable for various damages. Add to this the uncertain scope of many patents, due to the difficulty of defining particular technology, and many companies feel they are facing a perfect storm: extraordinarily expensive up-front licensing costs and untoward risk of future patent infringement litigation.

This expensive and risky technology environment was a dominant force behind the patent reform efforts that began in 2005. The bill introduced in Congress that year included sweeping changes to patent law designed to make it harder to acquire patents, easier to attack existing patents, and limiting damages and remedies available for patent infringement.[4] The Patent Act of 2005 was met with stiff opposition from a number of industries outside the computer and information fields, particularly the pharmaceutical and biotechnology sectors, who feared that the proposed reforms would wreak havoc on innovation in their industries.

Different Patent Law for Different Industries

Debates over the Patent Act of 2005, subsequent legislative proposals, and concurrent litigation made clear that different industries experience the patent system in widely variant manners. Although American patent law presents a largely uniform body of law across all technologies, the law is experienced differently by different industries. Like the parable of the blind men and the elephant, where each man perceives a different object because each touches a different part of the elephant’s body, patent law is perceived differently by different industries because variation in underlying technology characteristics cause different industries to interact with the patent system in different ways.

Pharmaceutical and biotechnological innovation, for example, requires time-consuming, costly, and risky research and development in order to achieve a new invention, such as a new drug or biologic. Developing new drugs and biologics routinely takes a decade or more, costs hundreds of millions or billions of dollars, and often requires testing hundreds of alternatives or compounds. Technological lifecycles (the length of time before a technology is rendered obsolete by later technological advance) in these fields can measure decades. The software and information technology fields, on the other hand, are less research intensive. New software applications can be produced on much shorter time scales and for a much more limited investment, often under a million dollars. Further, these computer-related fields evolve very quickly, with technological turnover on the order of several years or less. New innovation in these industries quickly becomes obsolete.

Industries also vary into how their technologies interact with the patent system. Pharmaceutical and biotechnological inventions often involve discrete, stand-alone innovation, such as a new drug or new device. These types of inventions are usually relatively easy to reverse engineer and copy. As a result of the ease of duplication and other factors, inventors in these fields have relatively limited means to recover the cost or value of innovation outside of intellectual property protection. Software and information technology innovation, on the other hand, routinely involve cumulative, rather than discrete, advances that evolve dependently from one innovation to the next. Cumulative innovation means that each new invention needs to incorporate a variety of prior patented technology in order to function. In addition, these fields often can rely on methods outside of the patent system in order to profit from their innovation, such as being able to commercialize an invention while maintaining its secrecy, lead-time, or bundling innovation with other sales and services.

Because of the vast differences in the technologies covered by the patent system, patent law plays out very differently for different firms. The same patent law that may be critical to promote pharmaceutical innovation can simultaneously be a costly anathema for computer-related firms.

The crosscurrents of opposed powerful industry groups led to a stalemate on patent reform efforts in 2005. New patent reform legislation has been introduced in each session of Congress since that time, and each year the proposed legislation has been successively watered down from prior efforts in an attempt to reduce opposition to the bill and increase the chance of passage. In addition, since 2005 the Supreme Court has issued several high-profile patent decisions that either judicially implemented certain elements of the originally proposed reforms or otherwise had the tendency to weaken the strength of patent rights.[5] These cases resolve certain of the problems that some industries perceived in the patent system and reduced the areas of conflict, generating optimism that 2011 may finally be the year patent reform is enacted.

The America Invents Act of 2011

Despite being limited in scope in relation to earlier patent reform bills, the America Invents Act of 2011 incorporates several significant changes to the patent system. These changes include shifting the United States from a First-to-Invent patent system to a First-Inventor-to-File system, introducing a new way for third parties to challenge patent grants, and a variety of other, mostly more modest, revisions to the patent statute.

First-Inventor-to-File. The United States is currently the only country in the world that has a first-to-invent patent system. Under this system, the first inventor to achieve an invention is entitled to a patent on the invention, even if the first inventor is not the first inventor to actually file a patent application on the given subject matter. The rest of the world operates under a first-inventor-to-file patent system: the first inventor to file a patent application, even if he or she was not the first inventor temporally, is entitled to the patent. In first-inventor-to-file jurisdictions, a person who is second to invent, but first to file, is entitled to patent rights on the invention. It bears emphasizing that both first-to-invent and first-inventor-to-file systems only permit patents to issue to actual inventors; if someone derives an invention from another, whether through direct copying or otherwise, she or he is not entitled to a patent, regardless of whether her or his application is filed first. The first-inventor-to-file versus first-to-invent issue only concerns the assignment of patent rights when two inventors each independently achieve the same invention.

The common critique of the first-inventor-to-file system is that it produces a race to the patent office. Consequently, those with greater resources have an unfair advantage, even if they are not the first to actually invent. In addition, a first-inventor-to-file system can create incentives to file rushed and sloppily drafted patent applications on not-yet-fully developed inventions. Many individual inventors and small entities are opposed to the first-inventor-to-file provisions, out of concern that the change will be advantageous to larger, better funded entities who can prepare their patent applications faster and who may flood the United States Patent and Trademark Office (USPTO) with patent applications. As a result, these changes could stifle small business innovation.

The advantages of a first-inventor-to-file over a first-to-invent system are certainty and the ease of administrability. Under the United States’ current first-to-invent system, when two inventors file patent applications on the same subject matter within a year of each other, the USPTO will declare an “interference.” Interferences are adversarial proceedings that can be both lengthy and expensive. This expense raises some question about small entities’ expectation that they are better off under the first-to-invent system. An added benefit of switching to a first-inventor-to-file system is that it would harmonize the United States’ patent system with the rest of the world, creating more uniformity in patent applications and practice. Harmonization and eliminating interference proceedings would likely reduce the cost of the patent system, and the resources saved could be devoted instead to further innovation.

The patent bill that passed the House of Representatives,[6] but not the bill that passed the Senate, includes a provision that creates a twist on the traditional first-inventor-to-file system. Under the House bill, an inventor who is first to invent (but not first to file) could be entitled to prior use rights. Prior use rights would provide a defense to infringement for an actual first inventor who commercially used an invention that he or she reduced to practice at least one year before the second inventor filed a patent application on the same subject matter. In other words, prior use rights do not prevent a second inventor from obtaining a patent, but can provide a defense to a patent infringement lawsuit.

New Means to Challenge Patent Validity. The America Invents Act includes a couple of new provisions that make it easier to challenge patent applications and the validity of issued patents. First, the proposed legislation allows third parties to submit certain published information relating to a pending patent application for the patent examiner to consider. Second, the proposed legislation increases the opportunity for third parties to challenge the validity of a patent after the patent issues.
Patent law currently provides certain post-grant patent challenge opportunities, but such provisions have been critiqued as not sufficiently effective or efficient. The new provisions create a new opportunity for post-grant review and modify an existing one. The new post-grant review allows a third party nine months to contest the validity of an issued patent on a variety of grounds. After the post-grant review period, a third party will still be able to challenge a patent, but only on more limited grounds. The precise extent of these grounds varies between the current House and Senate bills, but in each case is more extensive than current law.

In addition to shifting to a first-inventor-to-file system and providing new means to challenge patent validity, the America Invents Act makes a number of other amendments to the Patent Act as well. For example, the Act renders ineffectual patents on tax strategies, makes it easier to invalidate certain business method patents, and the House bill also limits enforcement of DNA diagnostic test patents when a patient needs a second opinion.

Will the Patent Pendulum Swing Too Far?

Taken together, the provisions of the America Invents Act would tend to make it slightly more difficult to obtain a patent in the first instance and slightly easier to invalidate a patent after it has issued. These changes, however, are far less significant than various patent reforms that have been proposed over the past six years. Most large patenting industries now either support or are not opposed to the current proposal. The primary opposition comes from small companies and individual inventors, although other provisions have been added to the Act in an effort to assuage these concerns or provide some beneficial trade-offs. For instance, recent additions to the Act reduce the patent filing fees for certain small and micro-entities. Any effect on innovation by small entities, such as new start-up companies, is a significant concern because some research indicates that smaller companies are more likely to produce significant innovation than larger companies.

The America Invents Act, if enacted, can be expected to have only modest effects on research and development and innovation activity in most industries. It will likely slightly reduce the amount and expense of patent litigation, permitting more resources to be devoted to innovation. The biggest effects may be felt by certain patent practitioners. Interference proceedings for example, a notable area of current practice, will cease to exist. The invention derivation proceedings that will replace them in certain instances will be far less numerous. Similarly, the limited tax patenting industry will also dry up. These impacts, however, are likely a relatively limited cost to bear for a bill that many believe will promote innovation across a wide variety of technology industries.

There is some reason to be cautiously optimistic that the political process leading to the America Invents Act may prevent the patent pendulum from swinging too far this time around. Unlike the litany historic patent law changes surveyed at the beginning of this article that tended to produce overcorrections, the current changes have been negotiated in a climate with powerful interests on both sides of the patent reform debates. In past situations, patenting industry usually lined up on one side of the patent reform movement, often leading to unbalanced pressure, and providing one cause of the excessive responses to perceived patent problems. The modern diversity in innovation and patenting industries has changed this political climate, in a manner that may be useful to patent law. A beneficial side-effect of this new political economy of patent reform may be to dampen the long endured, excessive oscillations of the patent pendulum.

Gregory N. Mandel is Associate Dean for Research and Professor of Law at Temple University Beasley School of Law.

———-

[1] 547 U.S. 388 (2006).

[2] 550 U.S. 398 (2007).

[3] S. 23, 112th Cong. (2011); H.R. 1249, 112th Cong. (2011).

[4] H.R. 2795, 109th Cong. (2005).

[5] E.g., eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006) (holding that patent owners are not necessarily entitled to injunctions for patent infringement); KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398 (2007) (effectively increasing the stringency of the nonobviousness patent requirement).

[6] H.R. 1249, 112th Cong. (2011).