Unfair

by Adam Benforado

  Yet there was a still darker twist to this case. With White identified, the file was closed. The authorities never looked for the real perpetrator and had no idea how close they had been to catching him—not decades later, after he had raped another Meriwether woman, but way back in 1979. It was then, just a few weeks after the assault, that the victim had stood at the police station in front of the five men pictured below.

  White appears in the middle of the lineup wearing ripped jean shorts and a white T-shirt. He is rail thin, with a relaxed, almost feminine pose—legs together, elbows in, hip slung to the side. He looks directly at the camera.

  The victim had no trouble picking him out—the one holding the number 3. As she explained, she was “almost positive” that he was the perpetrator.

  It was an awful mistake. But it was only half of the story. As it turned out, she made two fateful errors that day. Standing before her, just two spots to the right, was her real attacker: James Edward Parham, number 5, round-faced in jeans and a striped shirt, glancing off to the side. At the police station, she had looked upon the true perpetrator and picked out an innocent man.

  Parham’s inclusion in the lineup had been a mere coincidence. The police were focused on White. Parham just happened to be locked up for an unrelated offense at the moment the victim was brought in for the identification, and he was pulled in as a “filler.” The police had no idea that he was actually the person they were looking for. And it would be almost thirty years before anyone would connect the dots.

  —

  White’s case is unusual, but it is not isolated. Even among the limited number of DNA exoneration cases that have been catalogued by researchers, there are at least two other instances in which a victim was given the opportunity to identify the true assailant and selected an innocent man instead.

  In one of those cases, a twenty-two-year-old college student, Jennifer Thompson, was raped at knifepoint in her apartment. She was determined to help the police catch her attacker, and when she was presented with a photo array, and then a lineup, and then an in-court identification, she named the same man, Ronald Junior Cotton, each time. Thompson was “completely confident,” and Cotton was given a life sentence. But then another man in the prison wing where Cotton was locked up, Bobby Poole, began bragging that he was actually the one who had attacked Thompson. At Cotton’s retrial, Poole was brought into the courtroom: “Ms. Thompson, have you ever seen this man?” Without hesitation she responded, “I have never seen him in my life. I have no idea who he is.” Cotton was sentenced again to spend the rest of his life in prison. But, just like White, he turned out to be innocent, and the guilty party—matched through DNA—was none other than Poole. As Thompson wrote later, “I was certain, but I was wrong.”

  These tragedies bring the problems with witness memory into stark relief. If a person who was face to face with her attacker for an extended period of time can fail to identify him and instead implicate another man, what about all the other cases, the vast majority, in which a witness catches only a passing glimpse of the perpetrator, and that person does not appear in the lineup down at the police station?

  While there are other ways to identify a suspect or piece together events, including surveillance footage and DNA evidence, witnesses provide the most common means of figuring out what happened. Some witness memories, like the face of the perpetrator or the make of his car, are critical to solving a case. Others are important for determining how events transpired, which can reveal a motive, establish a necessary element of a crime (for example, that the killing of the victim was premeditated), or eliminate a self-defense claim (the victim pulled out a knife only after the suspect pointed a gun at him). But nearly every case turns on the memory of a witness at some point, whether it’s steering a police officer toward evidence, encouraging a reluctant prosecutor to press charges, convincing a juror to convict, or influencing a judge at sentencing. To cite just one statistic, each year in America some 77,000 people are charged with crimes after being identified by eyewitnesses in police lineups.

  Our dependence on witness memory would not be so troubling were it not for the clear picture that emerges from the thousands of studies on memory, experiments with mock witnesses, and real-life cases.

  There is, for instance, compelling evidence that eyewitness identifications are frequently inaccurate. When the actual perpetrator appears in a lineup along with several innocent fillers, witnesses fail to pick anyone out about a third of the time. And of those witnesses who do choose someone, one third select a filler. This is great news if you’re guilty, because it means that your chance of being identified in a lineup is only about 50 percent. But even more disturbing is what happens when the perpetrator does not appear in the lineup: in that situation, people select an innocent filler about half of the time (rather than correctly declining to select anyone). Moreover, people who successfully pick the suspect in a lineup turn out not to be so reliable after all: when those individuals are shown an identical lineup without the suspect, roughly half of them simply select someone else—an innocent person.

  It is no surprise, then, that erroneous eyewitness identifications are one of the leading causes of wrongful convictions. Of the first 250 DNA exonerations in the United States, 190 of them appear to have involved mistaken identifications.

  The mystery is how such horrible injustice can arise when, in many cases, no one intended to mislead or deceive. Victims tend to be strongly motivated to identify the people who actually committed the crimes against them. The vast majority of other witnesses who come forward want to help solve cases. And police, prosecutors, jurors, and judges have powerful incentives to catch and convict true perpetrators. There is nothing in John Jerome White’s case, for example, to suggest that the police set him up or deliberately bent the rules; they were simply trying to bring a rapist to justice. After his exoneration, White himself was reluctant to attack the people whose actions had deprived him of freedom for so long. It wasn’t a story of some evil conspiracy, just a case in which “some people made some mistakes.”

  White was right, but he also missed something important: the mistakes were neither random nor unexpected. As we’ll see, they were the predictable outcome of a criminal justice system that exacerbates the limitations and frailties of human memory.

  —

  Most of us have strong intuitions about how our memories work. One of the most widely shared notions is that they are basically like video cameras: over the years, our brains capture thousands of images and clips that we can retrieve whenever necessary. Sure, sometimes we forget where we stored things, or the image was blurry to begin with, but when we do successfully retrieve one of those stored pictures or videos, we are viewing an authentic and accurate record of what was once before our eyes.

  Not only do a large majority of us report that we have excellent memories, but we also expect other healthy human beings to perform basic memory tasks with accuracy and consistency. As a result, we have great faith in the power of memory as a tool in the criminal justice system.

  Part of that faith is quite warranted. In some ways, our memories are indeed the amazing crime-fighting tools we believe them to be. We have an uncanny ability, for example, to remember certain faces.

  But we also all know that our memories fail on a regular basis. I regularly cannot recall the names of people I have just been introduced to, crossword puzzle clues I read seconds earlier, and grocery items I assured my wife I did not need to write down. How is it possible that I can readily remember a useless fact I came across back in college, like the year On the Origin of Species was first published (1859), but not the last four digits of the phone number I was just given for the dermatologist? How is it that years later in a Tube station in northeast London I easily recognize the woman who had a locker next to me my freshman year of high school, but I struggle to place the student who sat in my class just last semester when I run into him at a bar near campus?

  The answer is that our memor
ies aren’t really like video cameras at all. To begin with, our real memories are severely hampered by limits in perception and attention. We are simply incapable of processing the incredible amount of material we encounter every second of every day. Just seeing or hearing or smelling something does not create a discrete memory that we can readily recall.

  As a demonstration, I’d like you to describe a person whose image you have seen thousands of times. Indeed, chances are high that you are carrying at least one copy of his picture with you at this very moment.

  Imagine that I’m a sketch artist and tell me about the man who appears on the front of the ten-dollar bill—without looking, of course.

  Is his hair, curly, wavy, or straight? Does it cover his ears? Does he have a dimple in his chin? Is he wearing a bow tie? Are his eyebrows bushy? Does his jacket have a small collar or a big collar? What type of nose does he have? And, finally, what is his name?

  —

  Now turn to this page and take a look at the man on the bill. How close did you come?

  For many of you, this task was extremely difficult, but it could have been much worse. I could have asked you about the signatures that appear to the left and right of Alexander Hamilton’s neck, or about what appears on the reverse side of the bill.

  We don’t generally take notice of elements in our field of vision if we aren’t focused on them. The details of Hamilton’s face are largely irrelevant to our use of the ten-dollar bill. When we pull one out, our attention is on completing a purchase; all we need to know is that it’s a ten in our hand and not a five, a one, or a twenty. It doesn’t matter how many times we’ve seen it or even how important it is. Indeed, we sometimes overlook things that are critical to our lives.

  In one study, researchers found that only 24 percent of the faculty, staff, and students with offices in the Psychology Department building at UCLA recalled the location of the nearest fire extinguisher—despite the fact that each extinguisher was clearly visible and no more than 25 feet away. Many of the people in the building had been exposed to them every day for years, but that didn’t matter. The fire extinguishers were not germane to their day-to-day goals and experiences.

  On the bright side, when we are encouraged to pay attention to something, our memories tend to oblige. When the experimenters returned to the UCLA office building two months later and asked the same participants about the location of the nearest fire extinguisher, everyone knew, because the earlier interaction had brought the location of the bright red objects to the forefront. The challenge for criminal witnesses is that many times the relevance of an object or person does not become clear until well after the incident. We are much less likely to remember the idling van and the bearded passerby if we have no reason to note them at the time.

  Imagine, though, a situation in which you are aware that you should make a mental note of everything around you—say, you witness a brutal assault in an alley. Unfortunately, even then our memories do not perform as we expect them to. They lack the permanence of photographs or videotapes; over time, we simply lose the ability to recall a lot of what we experienced. And the process is rarely uniform. We tend to be best at remembering the gist of what happened (two men were arguing, and the tall one picked up a pipe and hit the short one in the head) and are much less successful in remembering verbatim details (the tall man said, “You told Bill to leave the money in the cellar”). The specifics are also the fastest to slip away, with the exact words of a conversation being particularly delicate. Events that elicit strong emotion—like violent crimes—may enhance our memory of the core essence of what transpired while leaving us unable to remember many of the surrounding facts: Did the tall man have a backpack? Was anyone waiting in a car along the street by the alley? Were there any lights on in the building across the street? These are often the very details that allow investigators to solve crimes.

  The trouble with relying on memory is not just that we fail to encode certain things or that we forget over time, but also that our memories record what we encounter through the lens of our motivations, expectations, and experiences. As a result, two people will not have exactly the same memory of the same event.

  And once formed, memories are far from immutable. They are subject to revision, alteration, and reconfiguration. Memory is a constructive process perhaps best likened to creating a collage: we piece together various fragments and then fill in the inevitable white patches with our background knowledge, desires, and beliefs until we have something that is complete and usable. When we go to retrieve a memory, we are not simply rummaging through an old filing cabinet for a snapshot; as we search, we may in fact be arranging the image.

  The malleability of our memories has been documented in a number of experiments, including one in which participants were shown either an iconic image of the 1989 Tiananmen Square protest in Beijing (this page, left) or a doctored image of the same scene (this page, right). The alteration of the photograph affected people’s reported memories about the event: those who saw the doctored image recalled the protests as much larger than did those who viewed the original photograph.

  Presented with new information about an event, we may readily incorporate it into what we remember. We can even remember things that we never experienced or saw. One study found that 40 percent of British participants reported having seen footage of a bus exploding during the 2005 London terrorist attacks, although no such footage existed, and 35 percent of that group recounted particular details from the imaginary video. Contrary to what we’d expect, false memories are often highly specific, which makes them all the more believable both to the people who carry them and to third parties (including police officers, jurors, and judges).

  In most cases, our false memories are not made out of whole cloth but are instead logical extensions of what we would expect or want to have happened. We may remember having expressed doubt to a colleague about a project that eventually failed or recall hearing slurred speech from someone who got into a drunk-driving accident later that evening. Conjuring these memories provides us with a narrative that makes sense and affirms what we want to believe.

  If we look across experimental studies, people’s recollections of events are about 80 percent accurate. Put differently, roughly every fifth detail is false. But the problem is not just that we remember events mistakenly; it is also that we do so with great surety—one study showed that a quarter of inaccurate memories were given with total confidence. The victim who identified John Jerome White, remember, was “almost certain” he was her attacker.

  How did she get things so wrong? Some of the reasons are obvious in retrospect. She was seventy-four years old and not wearing her glasses when she was attacked. The only light came from the closet in an adjoining room. And before leaving, the perpetrator gave her a pillow and told her, “Hold this to your face until I get out.” Research shows that a witness’s eyesight and age, the viewing duration and distance, and the lighting all play a role in whether a memory is encoded accurately.

  But many of the findings are less intuitive. For instance, one study showed that a person’s identification of someone they saw under full moonlight was only as accurate as flipping a coin—which is to say, not at all. And, overall, the factors that play a role in our encoding of a memory are much more influential than we’d imagine. Simply by altering the conditions in which a witness viewed a person, researchers were able to boost identification accuracy to 86 percent or drop it to 14 percent.

  The legal system amplifies the problem by treating many of these important variables as entirely irrelevant. In White’s case, for example, one source of the victim’s misidentification may have been that the victim was white and her attacker was black. Research suggests that people are 50 percent more likely to make an error in identifying a person from another race, although individuals who have a lot of contact with the other race tend to be more accurate. The same is true of identifying someone of a different age. But because of its commitment to nondiscrimin
ation, the law generally doesn’t acknowledge or address this reality—and most police officers, judges, and jurors don’t even know it’s an issue.

  Researchers have also shown that our memories can be affected by mental or physical stress. It’s difficult to simulate the fear and anxiety associated with being the victim of a real crime, but scientists have gotten creative, drawing upon other experiences that may generate similar feelings. In one study, for example, participants were taken on the “Horror Labyrinth” tour of the London Dungeon, in which they passed through a dark maze with a screaming skeleton, frightening music, disorienting mirrors, and an actor in a dark robe who blocked the path of visitors. Participants who did not find the experience distressing were more than four times better at identifying the actor out of a nine-person lineup than those who reported high levels of anxiety and had increased heart rates.

  So, when a criminal uses a gun in a robbery, it doesn’t just encourage his victim to comply; it also makes it less likely that she’ll remember his face. There is more to it, though, than generalized fear; our poor memory also comes down to where our attention is drawn during a holdup (remember the ten-dollar bill). When a weapon is aimed at us, it tends to dominate the scene, and if our eyes are glued to the barrel, we are going to struggle to identify the suspect later on.

  Our memories may also be compromised by significant physical exertion, as when a victim fights off an attacker or a cop chases down a suspect. In one simulation study, police officers who punched and kicked a three-hundred-pound hanging bag to the point of exhaustion were far less successful at memory tasks than officers who remained idle. Not only did they struggle to recall briefing materials they had received beforehand, but they were also half as likely to correctly identify a suspect they encountered after hitting the bag.