Unfair

by Adam Benforado

  Over the last few decades, researchers have conducted a number of experiments showing how this happens. When we view events as if standing in the shoes of the person experiencing them, we are much more likely to attribute the actor’s behavior to forces and constraints in the surrounding environment than when we adopt the perspective of an outside observer, in which case we tend to make attributions that focus on the individual’s disposition and character.

  Imagine that you are impaneled on a jury and have to decide whether the defendant’s confession was voluntary or coerced by the police. As luck would have it, the entire interrogation was recorded, and you are provided with a videotape from one of three cameras in the room: a camera directed at the interrogator, a camera directed at the defendant, or a camera positioned to the side, showing both parties. It would seem reasonable to assume that regardless of the footage you were shown, you would come to the same conclusion, since all three cameras capture the exact same scene. When scientists conducted a number of studies using such a setup, however, they found that perspective made a big difference. By simply shifting the point of view from the person being questioned to the interrogator, researchers were able to significantly reduce the number of people who thought the resulting confession was coerced. Watching the interrogator through the eyes of the suspect, it was a lot easier to see—and feel—the menace and pressure. Those who watched the videotape that showed both sides made assessments that fell in between the two conditions.

  Camera perspective bias can also influence our assessments of whether the defendant is guilty and how severely he should be punished. In one experiment, moving from a confession videotape showing both the suspect and the interrogator to one focused solely on the suspect doubled the rate of conviction. What’s more, the bias seems to occur both for minor offenses like shoplifting and for more serious crimes like burglary, rape, and manslaughter. And it’s surprisingly sticky: greater expertise (being a law enforcement officer or a judge), increased accountability, and judicial instructions aimed at encouraging people to be more mindful of perspective bias all appear to be largely ineffective. People just cannot see what they are missing.

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  Could camera perspective bias have played a role in the outcome of Victor Harris’s case?

  Justice Scalia thought he had rooted out any potential unfairness by noting that “there are no allegations or indications that this videotape was doctored or altered in any way,” but he and the rest of the majority were wrong.

  The video camera mounted in Officer Scott’s cruiser seemed to offer an unfiltered lens on the core facts of the case. But it didn’t just record a high-speed chase; it recorded a chase from the perspective of the lead police officer involved in the pursuit. Watching the tape, we sit where he sat and hear what he heard: from the taillights of the suspect’s Cadillac reflecting off those wet Coweta County roads to the crackling voice of the dispatcher telling us to “take him out.” Having adopted the officer’s physical perspective, it becomes extremely easy to share his assessment of the situation and understand why he acted the way he did.

  What if the Supreme Court had watched another, different videotape—say, a clip taken by a pedestrian standing at an intersection or footage from a news helicopter hovering above? What if there had been a recording taken from inside Harris’s car, looking back at the police cars hot in pursuit? Each of these tapes would be a true, accurate depiction of the police chase, but the research suggests that we would reach very different conclusions about the level of risk the chase created, whether deadly force was reasonable under the circumstances, and who was to blame for putting the public in danger.

  Seeing events through Victor’s eyes would have put his actions in a whole new light. Viewers might have considered what it must feel like to be a nineteen-year-old black man in Georgia being pursued late at night by multiple police cars with lights flashing and sirens blaring. It might have triggered feelings of empathy and raised challenging questions: “How would I have responded under the circumstances, after making that initial mistake of not pulling over, knowing how officers tend to treat those who flee, and seeing no witnesses to intervene if things got out of hand?” With such a video, it would have been easier to see Victor as a young man influenced by powerful situational pressures.

  At the time of the accident, Victor was working at a temp agency to support himself as a full-time student at Griffin Technical College. He had left home at four in the morning and had been working all day. By 11 p.m. he was completely exhausted and was not paying attention as he passed the speed trap. When he suddenly saw the lights in his rearview mirror, he “panicked.” His license had been suspended for unpaid tickets, and he was afraid he’d go to jail. Running from the police is the last thing many Americans would ever do, but for young African American men—for whom the threat and fear of harassment, capture, and incarceration is ever present—it can be a basic instinct, learned as a kid. There is no expectation that things will work out, that you’ll get a fair shake, that you can trust in the police and the system. For many black teens, when you see a cop, you just go.

  In a fateful instant, Victor pressed down on the gas. As he explained later, “It wasn’t my intention to put anyone’s life in danger or to scare anyone. My only plan was to get home….As I was running, I saw other police cars that were blocking off the streets, and I felt like I was being trapped….I couldn’t believe this was actually happening to me….The last thing I wanted to do was hurt myself or anyone else. I was nineteen years old and I was scared.”

  —

  Victor Harris made a terrible error in judgment that rainy night, but he did not deserve to be paralyzed, and he did not deserve to have his case taken away from a jury. The system failed him because of the psychological limitations of the people who operate it—limitations we all share. We see, in the words of the Bible, the speck in the eye of our brother but fail to notice the beam in our own eye. We blindly trust in the objectivity of our technologies because they seem to deliver reality, when, in truth, they may distort our perspectives.

  Reasonable jurors can differ radically in how they perceive a case, and if you draw the “wrong” panel, you might be convicted of a crime when twelve other jurors would have found you innocent. Similarly, efforts to protect suspects from police abuse, like taping all questioning, can, paradoxically, have the effect of unfairly tipping things in favor of the prosecution if the camera happens to always be placed behind the interrogators.

  Moving forward, both of these concerns warrant dedicated reforms.

  With respect to perspective bias, the time to act is now. Every year, more squad cars are outfitted with dashboard cameras, more jurisdictions require interrogations to be taped, and more officers are wearing recording devices on their bodies as standard procedure. Most of these recordings will show events from the perspective of the police, and each one will hold the potential to sway those who watch it later, whether that is a prosecutor deciding whether to charge a suspect with resisting arrest, an internal-affairs detective reviewing the conduct of an officer, a juror trying to figure out who the aggressor was, or an appellate judge reviewing a case.

  But the solution isn’t to eliminate cameras altogether. Used in the correct manner, cameras may offer ways to make our system fairer.

  In 2012, a program was introduced in Rialto, California, to place small cameras on the bodies of police officers (in this case, on their sunglasses). Over the next year, both the number of complaints filed against officers and the number of incidents where officers used force decreased by well over 50 percent. Knowing that they were being watched seemed to encourage cops and members of the public to behave more civilly.

  The proliferation of video footage may also help us to avoid certain biases (for example, by eliminating the need to rely on faulty eyewitness memory to identify a suspect). And once we understand how footage can influence perception, we can change how we use cameras to address that distortion. Since camera angles th
at offer a third-party perspective can eliminate biased assessments of whether a confession was coerced, that should be the first choice. Since it’s often not possible to employ dashboard cameras—or those attached to an officer’s glasses—in a neutral manner, such video footage shouldn’t be used in a conclusive fashion, as it was by the Supreme Court. We should be particularly careful when footage doesn’t show all parties in the frame or when it captures only some of the key events. Alternatively, we might allow it to be entered into evidence only with the consent of the defendant.

  Unfortunately, controlling for the influence of each juror’s unique background and set of experiences presents a more vexing puzzle. The Sixth Amendment provides the defendant in a criminal trial with the right to “an impartial jury.” It’s a promise that we do not keep and may never be able to deliver. Still, we can do better.

  Shifting more responsibility for determining the facts to judges has always been a possibility. But when judges usurp the jury’s role on the grounds that something appears clear and uncontroversial, as the Supreme Court did in Scott v. Harris, they run the risk of simply substituting their own backgrounds and experiences for those of the jury.

  Rather, we should focus on jury composition. If different jurors perceive the key facts and legal issues of a case differently, then juries ought to be diverse. It is not fair that certain groups—such as white Americans—are currently overrepresented in jury pools while other groups are underrepresented. That is not fair to prospective jurors from disadvantaged groups, and it is not fair to people like Victor Harris who would face better odds in court with more inclusion. To treat the problem, we need to look hard at why—decades after reforms were put in place to address the exclusion of certain groups—jury diversity continues to be an issue. Multiple reforms may be in order, including paying jurors (or employers) enough to ensure that no one loses income, providing transportation and childcare to those who need it, and rethinking how we screen jurors.

  Under our current system, during the voir dire process prior to trial, the lawyers and the judge attempt to remove certain people from the jury pool whom they expect to be biased toward one side or the other. The challenge, as I’ll explore in greater detail later, is how to get voir dire to serve its intended purpose as we learn more about how particular identities, experiences, and values may influence juror perceptions and judgments at trial.

  Imagine a case of check fraud against a forty-two-year-old obese African American mother of six living on welfare. How should we go about sorting through potential jurors?

  Recent research suggests that a person’s weight can influence juror assessments, with male jurors more likely to reach a guilty verdict when the accused is an overweight woman than when she is thin. Female jurors, by contrast, do not exhibit this body-size bias, nor do men who are judging other men. What’s more, slim men appear to be particularly skewed against heavy female defendants: they are not only significantly more likely to conclude that an obese woman meets the criteria for the crime than a slender woman, but also inclined to judge her more likely to reoffend.

  In light of this, we could prevent all men from sitting on this particular jury, or bar all the skinny guys. Or we could ask the men more detailed questions to try to further differentiate within that pool. But if we care about fair treatment, doing nothing seems negligent.

  It is hard, though, to know where to stop. There are many other variables that may bias certain jurors and not others, including—in this fraud case—the age, race, and socioeconomic status of the defendant. If we have limited resources, which ones should we pay attention to and which should we ignore?

  Emerging technology may allow us to gain an increasingly nuanced understanding of how cultural cognition operates in the jury box. Implicit association tests are already able to capture the strength of the stereotypes and general attitudes individuals have about different groups, including racial minorities, poor people, and the obese. The basic idea behind the tests is that people will be quicker to group things that they already associate with each other (such as a picture of a thin person and the word good) than things that they don’t expect to go together (such as a picture of an obese person and the word good). When an image or word appears on the computer screen, you hit the “e” key if it belongs in the category on the left of the screen (thin faces/positive words) and “i” if it belongs on the right (obese faces/negative words). Then the categories are changed around (thin/negative and obese/positive). Measuring the speed of responses in milliseconds allows scientists to tap into automatic—and often unconscious—biases, which may be particularly useful in getting at jurors’ hidden partialities. When it comes to obesity, for example, people show strong implicit and explicit weight bias, since it is culturally acceptable to express negative feelings about obese people, but a different pattern emerges for biases against blacks and the poor. In these cases, many people show strong implicit biases, but relatively few are aware of their proclivities or willing to admit to them.

  To date, the researchers who have developed these tests have warned, on ethical grounds, against using them for anything other than educating jurors. But, as we will discuss later, sophisticated, individualized juror assessment is already offered by trial consultants and sanctioned by our legal system. The time may come when scientific screening is a standard part of voir dire. And breakthroughs in neuroscience may even make it possible to detect certain proclivities in individual jurors based on neural activity. The initial work has already begun. In a recent fMRI study, scientists found that the amount of money that mock jurors awarded to a black victim could be predicted by their brain activity as they looked at black and white faces. Rather than filling out a questionnaire, an arriving juror might someday be presented with pictures or descriptions of various people, situations, or events and then be dismissed (or perhaps “balanced out”) if his brain responses exhibit patterns associated with biases relevant to the case at hand. Whether this seems like a dangerous form of government intrusion or a huge leap forward probably depends on your feelings about the current system.

  The challenge will always be to determine whether a measure of implicit bias or particular brain activity is a reliable enough predictor of behavior to be grounds for intervention. How sure do we have to be that a juror is more likely to side with the police regardless of the facts of the individual case?

  But that’s really not a new question. It arises in nearly every trial—implicitly or explicitly. What we have to decide is whether we want to answer it with the aid of science or without. The car is on; the wheels are turning; we are driving forward no matter what. We can look at the best map available—imperfect though it may be—or we can navigate by instinct. The choice is ours.

  6

  THE CORRUPTION OF MEMORY

  The Eyewitness

  “Do you see a person in the courtroom here today that was the person who came in your apartment that night?”

  The victim looked around the room.

  “Yes, sir.”

  The Meriwether County prosecutor chose his words carefully. This was a pivotal moment in the trial: an opportunity to tip the case. If he played it for maximum theatrical effect, the Georgia jury would be his.

  The woman on the stand waited and they watched—this elderly woman, who had been hurt so badly that a rape kit could not be used; whose face, partially paralyzed, still carried the frozen terror of the crime.

  “If you would, please, ma’am, come out of the witness stand, and if you would just go point out that person.”

  She stepped down, just as he asked, and, in full view of the entire court, raised her hand.

  “That’s him.”

  John Jerome White was convicted and sentenced to life in prison.

  At trial, White had been adamant that he was not the man who had broken into the woman’s house in the early morning hours of August 11, 1979, beaten her, and sexually assaulted her. He was not the one who had then rifled through her purse for seven
ty dollars in cash, yanked the telephone cord out of the socket, and walked out the back door. “I know I didn’t rape that lady,” he insisted.

  Had the case turned only on the physical evidence, White might have convinced the jury to let him off. The prosecution didn’t have much—a criminalist at the Columbus Branch of the State Crime Laboratory had testified that there was “sufficient similarity” between hairs collected on bedding from the crime scene and hairs belonging to White “to conclude that they could have had the same origin.” But under cross-examination, the analyst was forced to admit that his level of certainty was quite low: the hair collected in the victim’s house “could have” come from White, by which he meant nothing more than “it’s more likely it did than didn’t.”

  The prosecutor, however, had a trump card in his deck.

  The victim had identified White as her attacker, not once but three separate times. As any D.A. will tell you, producing a positive ID by the victim is one of the most effective ways to lock a man up. In the words of Supreme Court Justice William J. Brennan Jr., “There is almost nothing more convincing than a live human being who takes the stand, points a finger at the defendant, and says, ‘That’s the one!’ ”

  But John Jerome White was not the one. DNA tests conducted in 2007 on those same crime-scene hairs excluded him as the perpetrator.

  By the time White walked out of Macon State Prison in December of that year, the victim had long since died, but the finger she raised some twenty-eight years earlier had left a jagged scar. Without her error, White wouldn’t have spent almost half of his life in prison. It was that simple and that cruel.