Unfair (18 page)

Jurors appear to be particularly impressed by in-court identifications, in which they can actually observe the drama of the perpetrator being pointed out.
Yet these identifications might be the most troubling of all: in many cases, the witness has already viewed the defendant multiple times and is under enormous pressure to be consistent. Had the victim in the White case stepped out of the witness box and failed to point out her attacker, not only would she have seemed incompetent, but she might also have derailed the whole case, undermining weeks of work by the police officers and lawyers trying to help her receive justice. Prosecutors commonly have eyewitnesses carry out this farce on the stand because they know how convincing such performances are to the jury. And judges almost never intervene because they operate
with the same mistaken notions about memory.
They believe that standard legal tools like the defense's ability to cross-examine eyewitnesses is sufficient safeguard, without realizing that such a tool may be largely useless—most witnesses have no idea that their memories have been corrupted.

In his 1908 book,
On the Witness Stand
, the pioneering psychologist Hugo Münsterberg recounted a famous meeting of a German “scientific association, made up of jurists, psychologists, and physicians.” On the night of the convention, there happened to be a public festival out in the street.
All of a sudden, in the midst of the proceedings, the doors to the hall were flung open and “a clown in highly coloured costume” burst in, followed by a man carrying a revolver.
The men shouted at each other and began to wrestle, at which point the gun went off.
A few moments later the intruders ran out of the room.
Given that a criminal investigation was a near certainty, the president of the association asked the forty people in attendance to carefully write down, individually, exactly what they had seen.
Unbeknownst to them, the entire scene was an experiment in eyewitness observation and memory, staged by the president.

The results were disheartening: the statements were filled with false details and omitted numerous key facts.
According to Münsterberg, when considered alongside his own memory experiments on Harvard undergraduates, the poor showing served as a “warning against the blind confidence in the observations of the average man.”
Indeed, “in a thousand courts at a thousand places all over the world, witnesses every day affirm[ed] by oath…mixtures of truth and untruth, combinations of memory and of illusion, of knowledge and of suggestion, of experience and wrong conclusions.”

More than a century later, that indictment still feels fresh. Look what happened after John Jerome White was finally exonerated
in 2007.
In the direct aftermath, there was a push in Georgia to seriously reform the eyewitness identification procedures across the state with best practices and mandatory officer training.
But other than the creation of a voluntary training program for police officers handling eyewitness identification procedures, significant research-based reforms have not been adopted.
In the vast majority of jurisdictions across the country, the story of entrenchment is no different, and the Supreme Court has failed to intervene meaningfully at the national level.

Of course,
some
progress has been made in the decades since Münsterberg first applied psychological insights to the law.
In the last thirty years, more than two thousand studies have been published on eyewitness identifications alone. With more rigorous scientific methods and a greatly expanded understanding of memory, we are now in a much better position to make lasting changes in the way our criminal justice system approaches eyewitnesses.

The first step is to convince the majority of those inside and outside the legal system that there is a problem and that justice demands we address it.
As Münsterberg put it, “If the time is ever to come when even the jurist is to show some concession to the spirit of modern psychology, public opinion will have to exert some pressure.”

We need to start thinking about witness mistakes in the way that we think about other types of errors that individuals, groups, and institutions make.
As I mentioned, studies of actual police lineups show that eyewitnesses select innocent people more than 30 percent of the time. Would we as a society tolerate the sale of a car whose brake lights malfunctioned on every third trip, or a hospital that handed out the wrong medicine to every third patient? Obviously not; we would demand immediate change. So why do we accept the claim that the legal system works just fine as it is?

It's true that, much of the time, when a witness picks out an
innocent filler from a lineup, that person does not go on to be convicted of the crime. But given the tens of thousands of witness identifications annually, even a low percentage of truly consequential errors can produce an egregious level of harm. And consider that someone could offer the same rosy account of the hospital that gave every third person the wrong prescription: in most cases the patient would either notice before taking the medication or swallow it without experiencing any significant ill effects. But would we say to those who did suffer serious adverse reactions—or to the families of those who lost their lives—“It's a shame about the error, but since our system works pretty well in general, we're not going to change it”?

We also need to keep in mind that the wrongfully convicted are not the only ones who end up suffering from flawed witness procedures. When an innocent person is locked up, the police stop looking for the true offender. Indeed, we know of at least 230 misidentification cases like White's, in which an innocent person was exonerated and the real perpetrator eventually identified through DNA.
In almost half of those cases, the perpetrator committed other crimes after the investigation was closed.

When memories are distorted and erroneous details about a crime are passed to the authorities, police officers and prosecutors lose days, weeks, and months investigating false leads and building cases against the wrong people. They fail to attain justice for victims and waste limited resources that are desperately needed elsewhere. Improving witness procedures does not pit the interests of defendants against law enforcement; it serves our common goal of achieving fairness and efficiency in criminal law. Indeed, many police officers are actually quite supportive of reforms.
As a spokesman for the Georgia Bureau of Investigations explained at the time of White's exoneration, “Nobody in law enforcement wants to arrest the wrong person.”

Although states like Virginia, North Carolina, Connecticut, and Ohio have all had success in introducing new eyewitness procedures,
New Jersey provides the most notable example of fearlessly embrac
ing the latest research. In 2001, the attorney general of New Jersey issued new eyewitness guidelines that required, among other things, having someone other than the primary investigator conduct the identification procedure.
The police are also instructed to use sequential lineups for both photo and live identifications, and to record the interactions. Ten years later, the New Jersey Supreme Court took a similarly bold step forward.
Writing of the “troubling lack of reliability in eyewitness identifications” and stating unequivocally that “the possibility of mistaken identification is real,” the court outlined a framework for regulating their use at trial, including placing a burden on the state to show that an identification is reliable if a defendant offers evidence that the witness might have been impermissibly influenced.
Even when disputed evidence is allowed to come before the jury, a judge must provide adequate information to jurors concerning the risks—the ones discussed in this chapter—related to misidentification.
Reformers hope that New Jersey can act as a model for other states in the years to come.

Promising solutions may also be found abroad.
One of the best existing tools for improving accuracy and completeness in eyewitness recollection, the cognitive interview, is already being used by the police in the United Kingdom, New Zealand, Australia, Canada, and Norway.
Based on insights from cognitive and social psychology, the approach focuses on establishing a good rapport with the witness, who then provides her account with a minimal number of open-ended questions and few interruptions.
Studies have documented that this technique elicits between 25 and 50 percent more correct information.

One of the reasons that the cognitive interview is so successful is that it goes to great lengths to preserve a witness's original memory, rigorously avoiding suggestive questioning and discouraging witnesses from guessing.
The benefits of that approach suggest that we need to fundamentally rethink how we handle
eyewitness evidence. A memory of the perpetrator's face is just as susceptible to adulteration and misuse as a hair sample or partial fingerprint taken from a crime scene, but we don't treat it that way. We don't worry that it will get corrupted or lost or misreported. We don't subject it to careful monitoring or objective assessment. That needs to change.
As Hugo Münsterberg argued, it makes little sense that a court should make “the fullest use of all the modern scientific methods when, for instance, a drop of dried blood is to be examined in a murder case, [while] the same court is completely satisfied with the most unscientific and haphazard methods of common prejudice and ignorance when a mental product, especially the memory report of a witness, is to be examined.”

Münsterberg thought that the path forward was to rely more heavily on a different kind of witness: experts. It's an intriguing possibility. If geneticists are the stewards of DNA evidence in court, should psychologists act as stewards of memory evidence, from the moment a witness is identified up through that witness's testimony at trial? Are experts the best hope for bringing objectivity, consistency, and accuracy to our troubled system of criminal justice?

There is damning evidence, and then there is the infamous Rodney King video.

Woken up by the drumbeat of a circling helicopter, George Holliday had stepped out on his balcony with his new Sony camcorder and pressed
RECORD
.
Though it was almost one in the morning, the scene in the video is flooded with sharp light from the squad car high beams. Bodies are already in motion.
In the first seconds of the tape, King, surrounded by a dozen or so police officers, gets up from the ground, takes a couple of steps, and is smashed in the face with a metal baton.
He's got Taser darts in his chest; you can see the glint of the wires.
Over the next minute and a half, King is hit fifty-six times, as the officers swing their clubs like baseball bats—repeated “power strokes” to the head and shoulders.
He falls and they kick him as hard as they can.
He rolls on the ground in apparent agony and they don't stop—not until they've got him hogtied, his hands and legs lashed behind him, face in the asphalt.
They drag him to the side of the road and leave him in a pool of blood to wait alone for an ambulance.

It's as brutal a police action as you will see. Twenty-four years later, it is still hard for me to watch.

King's skull was fractured in nine places, his eye socket and
cheekbone were shattered, and his leg was broken.
He suffered a concussion, injured both knees, and sustained damage to nerves in his face.
The officers claimed that he must have been on PCP—an explanation, they hoped, for their harsh responses—but no PCP was found in his system.
And though it was speeding that had initiated the police response, King was never charged with any crimes.

The tape was played over and over on major networks around the country.
And before the trial of the three patrolmen and the supervising sergeant directly involved in the beating, polls revealed that more than 90 percent of Los Angeles residents who had watched the footage thought that the police had used excessive force.
The details that emerged in the weeks that followed only made the actions seem worse.
Earlier in the night, one of the cops had described his last call, a domestic disturbance involving African Americans, as “right out of ‘Gorillas in the Mist.' ”
And after nearly killing King, another had gleefully crowed, “I haven't beaten anyone this bad in a long time.”
In the hospital emergency room, they taunted a barely conscious King: “We played a good game of hardball…we hit quite a few home runs.” What it all added up to seemed clear: a bunch of racist white cops brutalizing a black man for sport.

Political leaders on both sides of the aisle reached a unanimous verdict.
According to Tom Bradley, the mayor of Los Angeles, the officers had, “with the use of their batons and with their feet, left no doubt in anybody's mind about the charges that should be levied against them.”
President George Bush, whose law-and-order platform had earned him wide support from police departments, offered a similarly stark assessment: “Those terrible scenes stir us all to demand an end to gratuitous violence and brutality. Law-enforcement officials cannot place themselves above the law that they are sworn to defend. It was sickening to see the beating that was rendered and there's no way, no way in my view, to explain that away. It was outrageous.”

The evidence was so clear and so egregious that it prompted the Justice Department to review all complaints of police brutality against the government in the previous six years.
Police departments around the country began using the video in training as an example of what
not
to do.
And Darryl F. Gates, the police chief of Los Angeles, was forced to resign.

If ever there was a slam-dunk case, it was this one.

But the trial didn't go as everyone expected.
On April 29, 1992, all four officers were acquitted.

People poured into the streets of South Central.
Stores were looted, motorists were dragged out of their cars, dozens of fires burned.
More than fifty people would die; more than one thousand buildings would be destroyed; more than two thousand people would be injured; and more than twelve thousand people would be arrested.

How had this happened?

The acquittals that set off the deadliest riots of the American twentieth century are generally credited to the performances of two men at trial: Sergeant Stacey Koon, the lead officer at the scene of King's beating; and Sergeant Charles Duke, the defense's chief expert, who testified that every baton blow, Taser shock, and kick captured on Holliday's tape was justified under official protocol.

The removal of the case to a predominantly white suburb gave the defense a chance, but it was these particular men, according to the conventional account, who produced the victory. Their testimony was indeed pivotal—but the standard story misses the reason why.

The real reason that Koon, Laurence Powell, Theodore Briseno, and Timothy Wind left the Simi Valley courthouse free men in the face of seemingly conclusive evidence has less to do with the special talents of the two sergeants than with what we might term our justice system's “expert paradox.” We ought to defer to
experts when they are more qualified to assess matters than we are, but we often get things backwards: we rely on our own skills of anlaysis where they are deeply flawed, and we embrace expert evidence when it is misleading and unhelpful. King was denied justice in the state court trial because jurors were both too trusting of their own ability to determine whether Koon was lying and too accepting of the dubious framing provided by Duke.

They watched Koon on the stand, in his white shirt and striped red tie, the bright light bouncing off his bald forehead.
They looked at his relaxed body, slightly hunched, and his eyes blinking slowly and occasionally asymmetrically, the right eye closing just before the left.
They listened to his measured voice, his direct and precise responses, the way certain words revealed a lisp.
They watched how he'd look up to his right to remember things whenever asked to recollect.
They met his gaze as he turned toward them to explain his fear that King was on drugs, and watched him stare down the prosecutor, unwavering as he stated that every action his officers took was “reasonable and necessary using the minimum of force”: “Sometimes police work is brutal. That is just a fact of life.”
They took it all in, right down to the pout his lips made in silent anticipation of the next question. But what they believed to be the telltale signs of truthfulness turned out to be red herrings.

Likewise, the jury ate up Duke's narrative of officers dutifully and cautiously going about their business because he fit the image of an expert.
Duke, a former LAPD self-defense instructor with over twenty years of experience, had a commanding presence in the courtroom as he stood in front of the jury with his microphone and pointer stick.
Barrel-chested with a brown mustache and the squinty eyes of a veteran officer, he exuded authority and coolheaded objectivity. “
I never form an opinion until I get all the facts,” he told the prosecutor. Was he shocked by the tape?
No.
The officers were following established policy and procedure; this was precisely what handling a dangerous suspect looked like.

Just as important, Duke seasoned his account with the requisite sprinkling of scientific legitimacy. The power of the videotape of the King beating arose from its dynamism and immediacy. As we've seen, film provides us with the feeling that we are there, experiencing things as they happen.
Duke, trading on the power of framing, defused the impact by breaking the video down into its constituent parts—stills of the blows directed at King—and the defense attorney teed up his analysis of each one: “When he is in this position here, at 3:36:19, would it be appropriate to hit Mr. King with a baton?”
It seemed like an entirely natural move for an expert seeking to help us gain a true understanding of what was going on—after all, breaking something down to understand it is a basic part of the scientific method.
And the particular techniques Duke relied upon—slowing the speed of the tape, inspecting blown-up images—are just the type we expect: experts use special tools to reveal the hidden truth beneath the surface.
Duke's air of objective authority was only enhanced by the time-coded stamps and superimposed grids added to the video stills.

He seemed to be exposing the real story of what happened, but all Duke really did was bias jurors in favor of the defense. Kicks that once seemed brutal, out of control, and visceral became frozen, sterile, and distant; an atrocity, complete and easily identified, was fractured into a pile of jagged-edged shards.
Even more masterful, Duke managed, by not showing live action, to recast King as the aggressor.
His approach focused the attention on what King was doing in each frame—on how the officers were simply responding to King's “cocked” arm, the way his leg was “coming up,” how he was moving into a “rocking position.” Duke was fastening blinders to jurors' heads, when they assumed he was fitting them for new glasses.

There is a fundamental problem, then, with our handling of expertise. To understand why, we need to look at the circumstances in which we keep experts at bay and place our faith in our own knowledge and abilities, as well as the situations in which we
come under the spell of expert witnesses and—critically—their special tools. Consider the most essential task for any criminal justice system: separating truth from untruth. Jurors in the Rodney King trial were trying their best to sort the two out as they watched Koon and Duke on the stand. How and why did well-intentioned men and women get so tripped up?

We have all had a lifetime of practice in detecting lies. Think of how many times a day you get to hone your skills: Did your son actually brush his teeth? Does the mechanic really need to replace your brakes? Does your spouse really mean she's sorry? Is your student's grandmother actually sick?
We assume that the result of all of these encounters is that, by adulthood, most of us have developed finely calibrated instruments for catching lies both big and small. When it comes to assessing truthfulness, we are experts.

Our legal system shares this notion. In the law's estimation, the twelve Simi Valley jurors were fully capable of observing Sergeant Koon's blinking, listening to his even-toned responses, and making the call.
The Model Criminal Jury Instructions in the Third Circuit, for example, which encompasses the federal courts in Delaware, New Jersey, and Pennsylvania, make it clear that jurors are the gatekeepers of truth: “You are the sole judges of the credibility of the witnesses. Credibility refers to whether a witness is worthy of belief: Was the witness truthful? Was the witness' testimony accurate? You may believe everything a witness says, or only part of it, or none of it.”

Before trial, Third Circuit judges explain to jurors that there is nothing special about assessing credibility in court: “You may decide whether to believe a witness based on his or her behavior and manner of testifying, the explanations the witness gave, and all the other evidence in the case, just as you would in any important matter where you are trying to decide if a person is truthful, straightforward, and accurate in his or her recollection.”
The message to jurors is that they have all the tools and knowledge they need to decide questions of credibility. As they sit in their chairs in the gallery watching each witness, they should go with their gut.
Detecting lies isn't rocket science or brain surgery: “Remember to use your common sense, your good judgment, and your experience.”

All of this fits into a more general faith in the ability of lay-people to discern the reality of a case: what happened, who was responsible, what the key players were thinking at key moments. We do not use a panel of criminal law professors to answer these questions; in fact, qualifying for jury duty requires no familiarity with law, forensic analysis, or psychology.
Jurors don't even have to have a high school degree.
Our system of justice celebrates the talents of the amateur, giving him or her the vital role of determining the facts of the case and applying the relevant law.

Those officially designated as experts, by contrast, are the conduits of scientific, technical, and specialized knowledge: as a general matter, the scientific evidence we've discussed—from DNA to fMRI—comes into the courtroom only through their testimony. But their role is a subservient one. When an expert witness testifies, we do not tell jurors to simply defer to the good doctor.
In the Third Circuit, for example, the opinions of experts are to be given “whatever weight you think appropriate.”
In fact, a juror “may disregard the opinion(s) entirely” should he so choose.

If we embrace the power of an ordinary person to sort out falsehood and inaccuracy, what
is
the common sense of lie detection? What are the “tells” we live by?

Every year when I teach my Law and Mind Sciences seminar, I start off the class on deception by asking my students to judge whether I am being truthful as I explain how I spent the previous evening: cooking a meal of tapas for friends, going out to a bar to watch
Monday Night Football
, and so on.

I always tell the truth, but every year, like clockwork, almost all of the students think I'm lying. They point out that I didn't look them in the eye and that I seemed to be gesturing “too much,” or maybe it was that I was speaking faster than normal. The behavioral cues they focus on turn out to align quite well with general folk wisdom.
In experiments and surveys, gaze aversion, for instance, is by far the most commonly cited factor in determining that someone is lying.
Police officers and others in the criminal justice system focus on many of the same things, which isn't surprising given their training and instructions.

If you remember, with the Reid technique, before an officer begins interrogating a suspect to gain a confession, he first has to determine whether the suspect is lying.
And to do that, the Reid manual explains, an investigator must pay attention to “nonverbal behaviors that reflect comfort versus anxiety, confidence versus uncertainty, and a clear conscience versus guilt or shame.”
So, for example, “a suspect who does not make direct eye contact is probably withholding information.”
Knowing the signs of deceit—like jittery legs and lint picking—allows a police officer to identify liars with confidence.