Unfair

by Adam Benforado

  Alternatively, we might allow it: Benforado, “Frames of Injustice,” 1359.

  The Sixth Amendment provides: Henry T. Greely, “Law and the Revolution in Neuroscience: An Early Look at the Field,” Akron Law Review 42 (2009): 697.

  It is not fair that: Aneeta Rattan, Cynthia S. Levine, Carol S. Dweck, and Jennifer L. Eberhardt, “Race and the Fragility of the Legal Distinction between Juveniles and Adults,” PLOS ONE 7, no. 5 (2012): 2, doi: 10.1371/journal.pone.0036680.

  Recent research suggests that: Natasha Schvey, Rebecca Puhl, Katherine Levandoski, and Kelly Brownell, “The Influence of a Defendant’s Body Weight on Perceptions of Guilt,” International Journal of Obesity 37, no. 9 (2013): 1279. doi: 10.1038/ijo.2012.211.

  Female jurors, by contrast, do not: Schvey et al., “Weight on Perceptions of Guilt,” 1279.

  What’s more, slim men appear: Schvey et al., “Weight on Perceptions of Guilt,” 1279.

  Implicit association tests are: Sean M. Phelan et al., “Implicit and Explicit Weight Bias in a National Sample of 4,732 Medical Students: The Medical Student CHANGES Study,” Obesity 22 (2014): 1201–08; “About the IAT,” Project Implicit, accessed May 13, 2014, https://implicit.harvard​.edu/implicit/​iatdetails.html.

  The basic idea behind: “About the IAT,” Project Implicit.

  When an image or word appears: “About the IAT,” Project Implicit.

  Then the categories are changed: “About the IAT,” Project Implicit.

  Measuring the speed of responses: Phelan et al., “Implicit and Explicit Weight Bias,” 1201.

  In these cases, many people: Phelan et al., “Implicit and Explicit Weight Bias,” 1201–08.

  To date, the researchers who have developed: “Ethical Considerations,” Project Implicit, accessed May 13, 2014, https://implicit.harvard.edu​/implicit/ethics.html.

  The time may come when: Greely, “Law and the Revolution in Neuroscience,” 698; Nadelhoffer and Sinnot-Armstrong, “Neurolaw and Neuroprediction,” 633.

  And breakthroughs in neuroscience: Greely, “Law and the Revolution in Neuroscience,” 698; Thomas Nadelhoffer and Walter Sinnot-Armstrong, “Neurolaw and Neuroprediction: Potential Promises and Perils,” Philosophy Compass 7, no. 9 (2012): 633, doi: 10.1111/j.1747-9991.2012.00494.x.

  In a recent fMRI study: Harrison A. Korn, Micah A. Johnson, and Marvin M. Chun, “Neurolaw: Differential Brain Activity for Black and White Faces Predicts Damage Awards in Hypothetical Employment Discrimination Cases,” Social Neuroscience 7 (2012): 398–409.

  Rather than filling out a questionnaire: Greely, “Law and the Revolution in Neuroscience,” 698.

  6. The Corruption of Memory ~ The Eyewitness

  “Do you see a person”: Harvard University Press, “Understanding Eyewitness Misidentifications,” March 14, 2011, http://harvardpress.typepad.com/​hup_publicity/2011/03/​understanding-eyewitness-misidentifications.html; Brandon L. Garrett, “Introduction: New England Law Review Symposium on ‘Convicting the Innocent,’ ” New England Law Review 46 (2012): 671–74.

  “Yes, sir”: Harvard University Press, “Understanding Eyewitness Misidentifications.”

  The Meriwether County prosecutor: Maureen Downey, Georgia Innocence Project, “Sharper Eyewitnessing,” December 21, 2007, http://www.​ga-innocenceproject.org/​Articles/Article_95.htm.

  This was a pivotal moment: Garrett, “Introduction,” 672.

  The woman on the stand: Bill Rankin, Georgia Innocence Project, “Innocent Man’s Conviction Show’s Flaws in Line-Ups,” December 13, 2007, http://www.ga-innocenceproject.org/​Articles/Article​_90.htm; Innocence Project, “John Jerome White,” last accessed May 12, 2014, http://​www.innocenceproject.org/​Content/John_Jerome_White.php.

  “If you would, please, ma’am”: Harvard University Press, “Understanding Eyewitness Misidentifications.”

  “That’s him”: Harvard University Press, “Understanding Eyewitness Misidentifications.”

  John Jerome White was convicted: Garrett, “Introduction,” 672.

  At trial, White had been adamant: Innocence Project, “John Jerome White.”

  He was not the one: Innocence Project, “John Jerome White.”

  “I know I didn’t”: Garrett, “Introduction,” 672.

  The prosecution didn’t have much: Transcript of Record at 102, 122, State v. White, No. 314 (Ga. Super. Ct. May 29, 1980).

  But under cross-examination: Transcript at 112.

  The victim had identified White: Innocence Project, “John Jerome White”; Garrett, “Introduction,” 672.

  In the words of Supreme Court Justice: Watkins v. Sowders, 449 U.S. 341, 352 (1981) (Brennen, J., dissenting).

  But John Jerome White was not: Innocence Project, “John Jerome White.”

  DNA tests conducted in 2007: Innocence Project, “John Jerome White.” The Georgia Innocence Project got involved in the case in 2004 after White sent them a letter while in prison. Rankin, “Innocent Man’s Conviction.”

  By the time White walked out: Dorie Turner, “DNA Test Clears Man After 27 Years,” Washington Post, December 11, 2007, http://www.washingtonpost.com/​wp-dyn/content​/article/2007/12/11​/AR2007121101207.html.

  Without her error, White wouldn’t: White initially served ten years in prison for the crime he did not commit. While on parole, he was convicted of drug and robbery charges and served an additional 12.5 years—a sentence enhanced by his previous (wrongful) conviction. Innocence Project, “John Jerome White.”

  The authorities never looked: Rankin, “Innocent Man’s Conviction.”

  It was then, just a few weeks: Gary Wells, “The Mistaken Identification of John Jerome White,” last accessed May 18, 2015, http://www.psychology.iastate.edu/​~glwells​/The_Misidentification_of_John_White.pdf.

  White appears in the middle: Wells, “The Mistaken Identification.”

  He is rail thin: Wells, “The Mistaken Identification.”

  He looks directly at: Wells, “The Mistaken Identification.”

  Lineup photograph: I thank Brandon Garrett for providing this copy of the original lineup.

  The victim had no trouble: Brandon L. Garrett, Convicting the Innocent: Where Criminal Prosecutions Go Wrong (Cambridge, MA: Harvard University Press, 2011), 66.

  As she explained, she was: Garrett, Convicting the Innocent, 66.

  Standing before her, just two spots: Wells, “The Mistaken Identification”; Kaffie Sledge, Georgia Innocence Project, “Adjusting to Freedom,” April 21, 2008, http://www​.ga-innocenceproject.org/​Articles​/Article_104.htm.

  At the police station, she had looked: Garrett, “Introduction,” 672.

  Parham’s inclusion in the lineup: Garrett, “Introduction,” 672–73.

  Parham just happened to be: Rankin, “Innocent Man’s Conviction”; Garrett, “Introduction,” 673.

  The police had no idea: Wells, “The Mistaken Identification.”

  And it would be almost thirty years: The perpetrator’s DNA was eventually matched to the pubic hair found at the original crime scene. Rankin, “Innocent Man’s Conviction.”

  Even among the limited number: Garrett, Convicting the Innocent, 57–58, 67.

  In one of those cases: Jennifer Thompson, “I Was Certain, but I Was Wrong,” New York Times, June 18, 2000, 2014, http://www.nytimes.com/​2000/06/18​/opinion/i-was-certain-but-i-was-wrong.html?src=pm.

  She was determined to help: Thompson, “I Was Certain, but I Was Wrong.”

  Thompson was “completely confident”: Thompson, “I Was Certain, but I Was Wrong.”

  But then another man: Thompson, “I Was Certain, but I Was Wrong.”

  At Cotton’s retrial, Poole was brought: Thompson, “I Was Certain, but I Was Wrong.”

  Without hesitation she responded: Thompson, “I Was Certain, but I Was Wrong.”

  Cotton was sentenced again: Thompson, “I Was Certain, but I Was Wrong.”

  But, just like White: Thompson, “I Was Certain, but I Was Wrong.”

&nb
sp; As Thompson wrote later: Thompson, “I Was Certain, but I Was Wrong.”

  While there are other ways: Dan Simon, In Doubt: The Psychology of the Criminal Justice System (Cambridge, MA: Harvard University Press, 2012), 50.

  Some witness memories, like the face: Simon, In Doubt, 51.

  Others are important for determining: Simon, In Doubt, 90.

  To cite just one statistic: Gary L. Wells and Elizabeth A. Olson, “Eyewitness Identification: Information Gain from Incriminating and Exonerating Behaviors,” Journal of Experimental Psychology: Applied 8 (2002): 155, doi: 10.1037//1076-898X.8.3.155.

  Our dependence on witness memory: Simon, In Doubt, 53.

  There is, for instance, compelling evidence: Richard A. Wise, Clifford S. Fishman, and Martin A. Safer, “How to Analyze the Accuracy of Eyewitness Testimony in a Criminal Case,” Connecticut Law Review 42 (2009): 440–41 n. 12.

  When the actual perpetrator: Steven E. Clark, Ryan T. Howell, and Sherrie L. Davey, “Regularities in Eyewitness Identification,” Law and Human Behavior 32 (2008): 198–218.

  And of those witnesses who do: Simon, In Doubt, 53; Clark, “Regularities in Eyewitness Identification,” 198–218.

  This is great news if: Simon, In Doubt, 54.

  But even more disturbing: Simon, In Doubt, 54; Clark, “Regularities in Eyewitness Identification,” 198–218.

  Moreover, people who successfully pick: Simon, In Doubt, 54.

  It is no surprise, then: Garrett, “Introduction,” 676; Roy S. Malpass, Colin G. Tredoux, and Dawn McQuiston-Surrett, “Lineup Construction and Lineup Fairness,” in Handbook of Eyewitness Psychology (Vol. 2): Memory for People, eds. R. C. L. Lindsay et al. (Mahwah, NJ: Lawrence Erlbaum & Associates, 2007), 1.

  As we’ve seen before, one of the reasons that erroneous witness identifications or testimony can be so damaging is that they influence other evidence. Simon, In Doubt, 55. When the police get a positive identification of someone like White, they are likely to then work harder to find corroborating evidence to confirm his guilt and interpret such evidence in a biased way. That may mean placing more weight on the testimony of a jailhouse informant, who would otherwise be viewed skeptically, or interpreting genuinely ambiguous forensic evidence (like the hair sample found in the victim’s apartment) in a manner that confirms guilt.

  Of the first 250 DNA exonerations: Adam Liptik, “34 Years Later, Supreme Court Will Revisit Witness IDs,” New York Times, August 22, 2011, http://www.nytimes.com/​2011/08/23/​us/23bar.html?_r=1&src=rech.

  Victims tend to be strongly motivated: Victims may, however, be fearful of helping the police or reluctant to confront the perpetrator at trial, despite wanting the offender to be caught and punished.

  The vast majority of other witnesses: Of course, certain witnesses may be reluctant to cooperate with the police particularly in neighborhoods with a strong “no-snitch” code. Mark Konkol, “Chicago Police Solve More Murders With New Strategy, Witness Cooperation,” DNAinfo Chicago, July 24, 2013, http://www.dnainfo.com/​chicago/​20130724/loop/chicago​-police-solve-more-murders-with-new-strategy-witness-cooperation.

  There is nothing in: Garrett, “Introduction,” 673.

  It wasn’t a story of some evil: Errin Haines, Georgia Innocence Project, “Man Cleared by DNA Eager for Christmas in Freedom,” December 20, 2007, http://www.ga-innocenceproject.org/​Articles/Article_94.htm.

  One of the most widely shared: Daniel J. Simons and Christopher F. Chabris, “What People Believe About How Memory Works: A Representative Survey of the U.S. Population,” PLoS ONE, 6, no.8 (2011), doi: 10.1371/journal.pone.0022757, http://www.plosone.org/​article/info:​doi%2F10.1371%2Fjournal.pone.0022757. A number of studies suggest that high percentages of people, including police officers, find the video camera metaphor to be accurate. Simon, In Doubt, 95; Richard S. Schmechel et al., “Beyond the Ken? Testing Jurors’ Understanding of Eyewitness Reliability Evidence,” Jurimetrics 46 (2006): 177–214; Richard A. Wise, Martin A. Safer, and Christina M. Maro, “What U.S. Law Enforcement Officers Know and Believe About Eyewitness Interviews and Identification Procedures,” Applied Cognitive Psychology 25 (2011): 488–500; John C. Yullie, “Research and Teaching with Police: A Canadian Example,” International Review of Applied Psychology 33 (1984): 5–23.

  Sure, sometimes we forget: Simons, “What People Believe.”

  Not only do a large majority: Schmechel, “Beyond the Kin”; Wise, Safer, and Maro, “What U.S. Law Enforcement Officers Know”; Yullie, “Research and Teaching with Police”; Simon, In Doubt, 95, 150–51; John C. Brigham and Robert K. Bothwell, “The Ability of Prospective Jurors to Estimate the Accuracy of Eyewitness Identifications,” Law and Human Behavior 7 (1983): 19–30; Erin M. Harley, Keri A. Carlsen, and Geoffrey R. Loftus, “The ‘Saw-It-All-Along’ Effect: Demonstrations of Visual Hindsight Bias,” Journal of Experimental Psychology: Learning, Memory, and Cognition 30 (2004), 960–68.

  As a result, we have great faith: Simon, In Doubt, 150–57.

  We have an uncanny ability: That said, although we can be adept at spotting the faces of those whom we previously had reason to focus on, we do not generally excel at encoding the images of strangers. Simon, In Doubt, 55–56; Ahmed M. Megreya and A. Mike Burton, “Matching Faces to Photographs: Poor Performance in Eyewitness Memory (Without the Memory),” Journal of Experimental Psychology: Applied 14 (2008): 364–72. And human memories are not all the same: some people are much, much better than others at certain memory tasks. Roni Caryn Rabin, “A Memory for Faces, Extreme Version,” New York Times, May 25, 2009, http://www.nytimes.com/​2009/05/26​/health/26face.html. So, when it comes to faces, there are both “super-recognizers” and those with “face blindness” (a condition called prosopagnosia), who sometimes cannot even recognize their immediate family members. Rabin, “A Memory for Faces”; Rick Nauert, “Ability to Recognize Faces is Hardwired,” PsychCentral, accessed December 5, 2011, http://psychcentral.com/​news/2011/12​/05/ability-to-​recognize-faces-is-hardwired/32196.html.

  How is it possible that: Charles Darwin, On the Origin of Species (London: John Murray, 1859).

  The answer is that our memories: Overall, there is a large gap between widely held beliefs about memory and the scientific consensus. Simons and Chabris, “What People Believe.” Indeed, in a recent study, only 1.5 percent of participants demonstrated an accurate understanding of memory across the six basic questions that were asked. Simons and Chabris, “What People Believe.”

  To begin with, our real memories: Simons and Chabris, “What People Believe.”

  Just seeing or hearing or smelling: University of California, Los Angeles, “Did You See That? How Could You Miss It?” ScienceDaily, November 26, 2012, http://www.sciencedaily.com/​releases/2012/11/​121126151058.​htm?utm_source=feedburner&utm_medium=email&utm_campaign​=Feed%3A+sciencedaily​%2Fmind_brain%2Fpsychology+%28ScienceDaily​%3A+Mind+​%26+Brain+News+–+Psychology%29.

  We don’t generally take notice: University of California, Los Angeles, “Did you See That?”

  In one study, researchers found that: Alan Castel et al., “Fire Drill: Inattentional Blindness and Amnesia for the Location of Fire Extinguishers,” Attention, Perception, and Psychophysics 74 (2012): 1391–92; University of California, Los Angeles, “Did you See That?”

  The fire extinguishers were not germane: Castel, “Fire Drill,” 1391, 1395. This is the potent influence of inattentional blindness and amnesia—our failure to attend to elements in a scene when our focus is directed elsewhere, with a corresponding inability to recall those elements later despite having seen them. Castel, “Fire Drill,” 1391. Perhaps the most famous demonstration of inattentional blindness comes in the so-called “invisible gorilla” experiments, in which people shown a video of two teams of basketball players and asked to count the number of passes made by one team fail to notice a man in a gorilla suit walking into the picture. Castel, “Fire Drill,” 1391; Daniel J. Simons and Christopher F. Chabris, “Gorillas in our Midst: S
ustained Inattentional Blindness for Dynamic Events,” Perception, 28 (1999): 1059–1074.

  On the bright side: Castel, “Fire Drill,” 1394–95.

  When the experimenters returned: Castel, “Fire Drill,” 1394–95; University of California, Los Angeles, “Did you See That?”

  Ten Dollar Bill image: “File: US10dollarbill-Series 2004A.jpg,” Wikimedia Commons, last accessed May 15, 2014, http://en.wikipedia.org/​wiki/File:US10dollarbill​-Series_2004A.jpg.

  They lack the permanence: Simon, In Doubt, 98.

  We tend to be best at remembering: Dan Simon, “The Limited Diagnosticity of Criminal Trials,” Vanderbilt Law Review, 64 (2011): 161; Simon, In Doubt, 97.

  The specifics are also the fastest: Simon, In Doubt, 97, 109.

  Events that elicit strong emotion: Simon, In Doubt, 107; John C. Yuille et al., “Eyewitness Memory of Police Trainees for Realistic Role Plays,” Journal of Applied Psychology 79 (1994): 931–36; Lynn M. Hulse and Amina Memon, “Fatal Impact? The Effects of Emotional and Weapon Presence on Police Officers’ Memories for a Simulated Crime,” Legal and Criminological Psychology 11 (2006): 313–25.

  The trouble with relying on: Simons, “What People Believe.”

  As a result, two people will not: Simons, “What People Believe.”

  And once formed: Simons, “What People Believe.”

  Memory is a constructive process: Simon, In Doubt, 96.

  When we go to retrieve a memory: Simons, “What People Believe.”

  The malleability of our memories: Dario Sacchi, Franca Agnoli, and Elizabeth Loftus, “Changing History: Doctored Photographs Affect Memory for Past Public Events,” Applied Cognitive Psychology 21 (2007): 1005, doi: 10.1002/acp.1394, https://webfiles.​uci.edu/eloftus​/Sacchi_Agnoli_Loftus_ACP07.pdf.