Unfair (33 page)

But much has changed in the intervening decades. Trial consulting's tether to social justice has been severed, and balance is no longer the aim.
With clients paying tens of thousands of dollars—or even, in the case of high-profile murder trials, hundreds of thousands of dollars—for the services, delivering a fair trial isn't enough. Clients want the verdict to go their way. In some ways, then, the goal of the trial consultant has been entirely reversed. If once the aim was to bring to light unappreciated biases and eliminate them, the focus now is on using social science to catalogue, control, and all too often accentuate biases. In fact, from the perspective of a trial consultant, a system that is predictably unfair, in ways that are hidden from most court participants, is the best possible situation.
It presents a golden business opportunity.

Of course, there are still some in the industry who see their role as serving justice by helping lawyers and experts explain complex concepts to jurors, counteracting biases that courtroom actors may bring to trial, and identifying people with undisclosed prejudices. Yet these well-intentioned individuals are extremely vulnerable. When you possess the scientific knowledge to bend legal processes, judges, jurors, and witnesses to your ends, it's hard to say no to the easy money. What's more, the scope of distortion is immense: almost every finding I have described in this book could be used both to foster justice and to stymie it.

Take the research on eyewitness memory.
Today, witness preparation is a key service offered by trial consultants, and it is often quite extensive, with informational interviews in which the lawyer explains the overall picture of the c
ase and learns everything the witness knows, as well as simulations on the stand with feedback from a mock jury.
This preparation carries a number of benefits, allowing a lawyer to better construct her arguments, decide whether a witness is credible, and help a nervous witness become more comfortable with the process. Yet, given what we now know about the fragility of memory, a trial consultant could easily conclude that this type of preparation is likely to contaminate the witness's memory and is therefore unethical to pursue. Realistically, though, how often will that happen?

The research on memory tells a consultant or lawyer that robust witness preparation makes it more likely that the verdict will go in favor of the client: witnesses who have been thoroughly rehearsed are more likely to adopt facts they've been given as their own memories, and they are more likely to express confidence in those memories, which jurors are then inclined to take as a sign that they are accurate. Unscrupulous consultants, then, will clearly prep their witnesses vigorously, but so will many consultants who are simply trying to be dedicated advocates for their clients. And there's little stopping them: trial consultants are not directly regulated and the standards set by the American Society of Trial Consultants are extremely general and easily met.

Lawyers are responsible for the consultants they hire, but in a perverse twist, failing to earnestly prepare a witness may be significantly more likely to earn sanction than readying your witness in a way that warps his recollection.
In fact, a defendant can actually bring an “ineffective assistance of counsel” claim under the Sixth Amendment on such grounds.
The American Bar Association and the judiciary have not only failed to seriously address dubious witness preparation, they've actually sanctioned practices that research shows lead to memory distortions. As the
North Carolina Supreme Court explained: “It is not improper for an attorney to prepare his witness for trial, to explain the applicable law in any given situation and to go over before trial the attorney's questions and the witness' answers so that the witness will be ready for his appearance in court, will be more at ease because he knows what to expect, and will give his testimony in the most effective manner that he can. Such preparation is the mark of a good trial lawyer…and is to be commended.”
Members of the United States Supreme Court have characterized the “ ‘coaching' of Government witnesses prior to their testimony” as “inevitable.”
And they have repeatedly emphasized the value of cross-examination as an effective tool for dealing with coaching, despite research from psychology suggesting that it almost certainly is not.

All of this means that few trial consultants or lawyers will see problematic witness preparation as problematic at all.
And because such preparation invariably occurs in private and is often protected by attorney “work product privilege”—preventing the other side from accessing the materials a lawyer has prepared in anticipation of trial—outsiders will almost never find out when a witness's testimony has been tainted.

We make it easy for trial consultants and attorneys to use the insights from psychology and neuroscience to the detriment of accuracy, fairness, and justice. But weak ethical guidelines and loose professional constraints are only part of the story. Increasingly, research studies offer ways to directly influence the outcome of trial, with no need to extrapolate or read between the lines.
Take a recent set of experiments in which scientists decided to see if they could use the juror screening process not to detect and remove bias—as intended—but to prejudice real people.
In the experiment, every mock juror was asked two neutral questions, but some people were asked an additional question about whether they would be able to act impartially if the defendant turned out to be a gang member.
Even when it was made explicit that the question
was merely hypothetical, it had a powerful biasing effect: participants who were asked the question were significantly more likely to reach a guilty verdict than those who did not.
According to the researchers, because gangs are associated with criminal behavior, exposure to the hypothetical question made that negative stereotype readily accessible and encouraged participants to find the defendant guilty.

Is it any surprise, then, that trial consultants now use
voir dire
not only to select favorable jurors but also to establish impressions that influence juror perceptions and judgments once the trial begins?
In some ways, research like this can be read as a how-to manual for unscrupulous attorneys. Yet it need not be; it has just as much potential as a powerful force to eliminate bias in our system. For this transformation to take place, however, we need to be committed to reshaping how trial consultants and lawyers do their work. This does not mean changing who we are; it means reaffirming the principles upon which our criminal justice system is based. The purpose of
voir dire
is to pick a fair jury; when it is being used, instead, to stack the deck, then we have truly lost our way.

There is no reason to think that the people who make their living in the trial-consulting industry are somehow less moral than the rest of us. But they are creatures of their environment, and the current environment tells them that using knowledge of the human mind to manipulate legal actors is not only permissible but commendable. Not going the extra mile for your client is letting your client down. Witness preparation and juror analysis are all just part of the modern trial. Thus, few of these good people—trained scientists, lawyers, and others—ever stop to consider the far-reaching effects of their actions. We are selling jurors' and judges' minds to the highest bidder. It's time for honest reflection. Justice should not be a commodity.

A little over one hundred years ago, the English writer G. K. Chesterton was called for jury duty.
After taking his oath, Chesterton sat back and observed the various characters in the unfolding drama: a woman accused of neglecting her children, a bicycle thief, a judge, assembled lawyers.
From that intimate vantage point, he realized something that he had previously failed to grasp: “The horrible thing about all legal officials, even the best, about all judges, magistrates, detectives and policemen, is not that they are wicked (some of them are good), not that they are stupid (some of them are quite intelligent), it is simply that they have got used to it.”

As he explained, the problem with the system was that those in it were so acclimated to their surroundings, so set in their ways and assumptions, that “they do not see the prisoner in the dock; all they see is the usual man in the usual place. They do not see the awful court of judgment; they only see their own workshop.”
For Chesterton, the solution was laymen jurors—outsiders, like him, who could “see the court and the crowd, and coarse faces of the policemen and the professional criminals, the wasted faces of the wastrels, the unreal faces of the gesticulating counsel—and see it all as one sees a new picture or a ballet hitherto unvisited.”

As this book has suggested, Chesterton's faith in jurors was most likely misplaced—they are subject to many of the same cognitive limitations as the judges, police officers, and attorneys he criticized—but he was exactly right about the problem with our criminal justice system. We have gotten used to it. It is so familiar that we cannot see its true nature—what is moving its gears and gumming up the works. The main enemy of justice does not lie in the corrupt dispositions of a few bigoted cops, stupid jurors, or egotistical judges. It is found inside the mind of each of us.

The starting point of any reform comes in understanding and accepting this reality. We all need to look at the criminal justice system through new eyes. So, raising awareness about psychology and neuroscience research is critical. This work maps our flaws and shows us the way forward. It will take perseverance and courage, but our judicial system is flexible enough to respond to the new scientific evidence.

The good news is that researchers are devoting more and more attention not only to cataloguing our biases but also to controlling for them and even eliminating them.
There's now evidence, for example, that implicit racial bias puts unarmed blacks at a significantly greater risk of being shot than unarmed whites, as well as evidence that police simulator training that emphasizes not shooting until certain can reduce errors.
The training doesn't remove the underlying racial bias, however.
To do that, scientists have been exploring an array of promising tactics.
One successful approach is to show people images of well-known blacks with strong positive associations (like Martin Luther King Jr.) and well-known whites with strong negative associations (like Charles Manson) in order to disrupt racial stereotypes.
Another involves presenting a vivid story in which participants are encouraged to imagine being badly hurt by a white assailant and rescued by a black man.
Now that we know some of the key features of successful interventions, the challenge is to figure out how to make the debiasing stick. What's encouraging about this trend in research
is that it greatly facilitates reform by explicitly testing solutions to the problems identified in this book.

Along with these new studies, a number of important real-world innovations are already under way—we've seen some in the preceding chapters—and others can be made right now. The fact that certain police departments have successfully switched to videotaping all interrogations from a third-party perspective, begun using cognitive-interview techniques when speaking to witnesses, and eliminated suggestive lineup procedures is proof that change is possible today. But we also need to devote attention to a broader reconceptualization of our criminal justice system in light of scientific insights, even as we acknowledge that this future-oriented work is inevitably somewhat speculative.

This book has explored the things about us that lead to unfairness, but we won't get where we want to go by focusing only on the ways we come up short. Human nature, while deeply flawed in some ways, is also a source of profound goodness. We are all capable of transformative compassion. And our greatest opportunity for achieving true justice is learning when to override our basic instincts and when to draw on our deep well of empathy.

Just because humans created the criminal justice system doesn't mean that we are ideal operators of its processes and institutions. Our natural limitations can prevent us from living up to our principles and achieving our goals. And the implication is that we need to reduce our legal system's reliance on human perception, memory, and judgment.

Many other fields—from election forecasting to traffic planning to eye surgery—have undergone a similar reckoning and realignment. Baseball teams that once picked players based on the intuitions of scouts now rely increasingly on statistical analyses to field winning teams. Pharmacists who once avoided dangerous drug interactions and allergies by relying on their memories and
those of their customers now depend on programs that track prescription histories and offer automatic alerts.

Visit the Martin guitar factory in Nazareth, Pennsylvania, and you will learn that the company, which has prided itself on its handmade woodwork since 1833, decided a number of years ago that, in pursuit of the finest possible product, it should invest in a robot.
The lacquer on the exterior of a guitar is only about twice the thickness of a human hair, which means that even a highly experienced worker who bears down just a little too hard on the polishing pad can easily burn right through to the raw wood, requiring a costly refinishing of the entire instrument.
With its pressure-sensitive wheel and ability to execute exactly the same movements for each instrument, the polishing robot never makes that error. It was hard giving up human control, but to accomplish the company's core mission, it was the right decision, and those in charge weren't afraid to make it.
As Dick Boak, a longtime employee, explains, “Because we have such a long heritage of hand craftsmanship we are always a little skeptical of new technologies. But where it makes sense for new technology to really work or improve the product we try to be open-minded.”

We need to be similarly flexible in our quest for a more effective and enlightened criminal justice system. One of the best ways to address the unfairness that comes from the limitations of the human brain is simply to stop depending on human faculties. If we know that eyewitnesses are not very reliable and that judges often struggle to be objective, we need to think about how we can improve eyewitness identifications and reduce judicial bias, but we should also consider how we might avoid needing an eyewitness or a trial in the first place. Are there processes that we could simply do without?

One prime candidate, mentioned earlier, is the in-court witness identification. It is highly suggestive, regularly corrupted by earlier identification procedures, and given undue weight by jurors. Even prosecutors realize it's pure show. So let's cut the act.
Another candidate is the right of lawyers to remove jurors without cause before trial. The evidence suggests that rather than culling particularly biased jurors, attorneys use their peremptory strikes to tilt the jury to their side.
Little would be lost by simply eliminating this ability. To address the failure of prosecutors to turn over evidence to the defense, we could have forensic reports automatically sent from the crime lab to the prosecution and defense at the same time, or have all police reports entered into an open-access file with no input or revision by the prosecution. You don't have to worry about dishonesty when there is no opportunity to be dishonest.

In many cases, we need to realize that technologies already exist that can reduce our dependence on fallible human faculties. When a murder occurred a few blocks from my house in Philadelphia, it was solved within a few days, not because witnesses came forward, but because several cameras captured the murderer going into the victim's house and driving by the home in his truck. With a proliferation of security cameras, an army of private citizens armed with smartphones, and more recording in interrogation rooms, squad cars, and prisons, the need to rely on the vagaries of human memory is greatly reduced. And the less dependent we are on eyewitness identifications and testimony, the less we have to place our trust in the ability of jurors to assess credibility.
Although, as we've seen, videos are not panaceas, the broader benefits in combating wrongful convictions are significant: a video showing the license plate of the perpetrator's vehicle largely eliminates the possibility of a false confession or the chance that a photo of the bloody crime scene will sway a jury toward condemning an innocent man.

Improved forensic analysis may also play an important role.
The closer we come to a world in which we can analyze DNA and other trace evidence in real time, based on limited or corrupted samples, the less we need to worry about many of the problems we've already discussed. Promising new technologies that can quickly close cases are already hitting the streets.

A few cities, for example, are experimenting with equipment that can pinpoint the precise location of a gunshot and automatically trigger a camera to swivel and record the perpetrator, freeing officers from having to rely on neighbors' flawed perceptions and foggy recollections, as well as ensuring that the police capture all incidents of gun violence.

Likewise, knowing that detectives often overlook critical evidence in the frenetic period following a crime and that memories of the scene can easily be distorted or quickly fade, in 2009 the New York Police Department began using the Panoscan, which captures a 360-degree view of the crime environment in high resolution.
Months after a man is found bound and stabbed in his bed, the police can go back to the panoramic image and re-inspect every square inch of the room, from the shirts and jackets visible through the open closet door to the placement and condition of the five cigarette butts and cocaine on the table.

In another New York City innovation, the police department recently launched a smartphone pilot program that allows officers in the field to check, among other things, whether an apartment on a hallway they are walking down has been involved in an earlier domestic-violence report and whether a resident is a registered gun owner.
Coming across an individual on the street, the officers in the program can immediately pull up her DMV and police records. With this technology, cops can get clear answers rather than having to rely on their faulty memories and dubious intuitions.

An officer who is called to an apartment because a neighbor has heard screaming, for instance, may have a vague recollection of a violent fight involving a PCP-addled man at that address. So, when the door is opened and a man shouts some expletives at him, the officer may assume that the man is a threat and take action that endangers both of them. With the smartphone, however, the officer can immediately look up the apartment number and see that he was wrong about the PCP incident—that was on the seventh
floor.
This
apartment, according to the details recorded the last time the police were summoned, has a resident with severe Tourette's and schizophrenia who has no history of violence. With this data, the officer can properly address the situation without anyone getting hurt.
Such technology does raise civil liberties concerns, but the tradeoff may be worth it if we can prevent officers from acting upon gut feelings that turn out to be baseless. Those mistakes often lead to liberty deprivations that are far more severe and lasting.

All that said, the best way to avoid known human biases or predictable errors in our criminal justice system may be to make changes outside of it. When confronted with a question like how to reduce the murder rate, we tend to recite the standard set of commonsense solutions: increase the number of officers in high-crime neighborhoods, crack down on drug gangs, and develop better tests to predict future violent behavior. But there may be other, less obvious responses that are more cost-effective and easily implemented.
For example, a city could invest in trauma kits containing materials developed by the military for treating battlefield wounds and train all officers in how to address the major causes of preventable death in combat (a collapsed lung, airway obstruction, and hemorrhage from a limb), which also happen to be extremely common when someone has been shot in a drive-by or wounded in a robbery.
Or we could have all hospitals and ambulances carry the inexpensive generic drug tranexamic acid, which is used to slow the bleeding of wounded soldiers—it's estimated that every year this simple change could save the lives of up to four thousand Americans who are the victims of violence. Before we go down the road of sanctioning invasive and problematic police actions to try to reduce gun violence (like “stop and frisk”) or invest immense time and energy in developing neuro-recidivism predictors that may never be accurate, we should see if there's a simpler way to achieve our ultimate end: saving lives.

There are numerous opportunities for creative crime control
if we take a broader view of the problem.
Researchers recently found that one of the major contributors to the decrease in robberies during the 1990s had to do with a seemingly unrelated policy change.
The federal government had begun requiring states to disburse welfare payments through the Electronic Benefit Transfer system, which greatly reduced the amount of cash on the street, as beneficiaries started relying on debit cards.
Less cash in circulation meant fewer cash-related crimes. The lesson? Sometimes those closest to the problem—cops, prosecutors, judges, and jurors—aren't in the best position to fix it.