Unfair

by Adam Benforado

  The alteration of the photograph: Sacchi, Agnoli, and Loftus, “Changing History,” 1008–09.

  We can even remember things: Simon, In Doubt, 99.

  One study found that: Steven Frenda, Rebecca Nichols, and Elizabeth Loftus, “Current Issues and Advances in Misinformation Research,” Current Directions in Psychological Science 20 (2011): 22.

  Tiananmen Square photographs: The original photo used in the experiment is by Stuart Franklin, “The Tank Man” (Magnum Photos, 1989).

  Contrary to what we’d expect: Simon, In Doubt, 104–105; Margery A. Eldridge, Philip J. Barnard, and Debra A. Bekerian, “Autobiographical Memory and Daily Schemas at Work,” Memory 2 (1994): 51–74.

  In most cases, our false memories: Simon, In Doubt, 100–105.

  Put differently, roughly every: Simon, In Doubt, 93.

  But the problem is not just that: Jennifer L. Tomes and Albert N. Katz, “Confidence-Accuracy Relations for Real and Suggested Events,” Memory 8 (2000): 279.

  She was seventy-four years old: Downey, “Sharper Eyewitnessing”; Rankin, “Innocent Man’s Conviction.”

  The only light came from: Innocence Project, “John Jerome White.”

  And before leaving, the perpetrator: Rankin, “Innocent Man’s Conviction.”

  Research shows that a witness’s eyesight: Simon, In Doubt, 60–61; Jean H. Searcy, “Age Differences in Accuracy and Choosing in Eyewitness Identification and Face Recognition,” Memory and Cognition 27 (1999): 538.

  For instance, one study showed that: Simon, In Doubt, 60.

  Simply by altering the conditions: Simon, In Doubt, 57; D. Stephen Lindsay, J. Don Read, and Kusum Sharma, “Accuracy and Confidence in Person Identification: The Relationship Is Strong When Witnessing Conditions Vary Widely,” Psychological Science 9 (1998): 215–18.

  In White’s case, for example: Harvard University Press, “Understanding Eyewitness Misidentifications.”

  Research suggests that people are 50 percent: Simon, In Doubt, 63; Christian A. Meissner and John C. Bringham, “Thirty Years of Investigating the Own-Race Bias in Memory for Faces: A Meta-Analytic Review,” Psychology, Public Policy, and Law 7 (2001): 3–35.

  The same is true of identifying: Simon, In Doubt, 63; Matthew G. Rhodes and Jeffrey S. Anastasi, “The Own-Age Bias in Face Recognition: A Meta-Analytic and Theoretical Review,” Psychological Bulletin 138 (2012): 146–74.

  Researchers have also shown that: Research suggests that while a slightly heightened level of anxiety can improve accuracy, high levels of stress are clearly detrimental. Tim Valentine and Jan Mesout, “Eyewitness Identification Under Stress in the London Dungeon,” Applied Cognitive Psychology 23 (2009): 153; Simon, In Doubt, 61; Kenneth A. Deffenbacher et al., “A Meta-Analytic Review of the Effects of High Stress on Eyewitness Memory,” Law and Human Behavior 28 (2004): 687–706.

  In one study, for example, participants: Valentine, “Eyewitness Identification Under Stress,” 154.

  Participants who did not find: Valentine, “Eyewitness Identification Under Stress,” 158; Simon, In Doubt, 62. While about 54 percent of high-anxiety participants picked an innocent person out of the lineup and only around 18 percent made an accurate identification, 75 percent of low-anxiety participants made an accurate identification. Valentine, “Eyewitness Identification Under Stress,” 158; Simon, In Doubt, 62.

  When a weapon is aimed at us: Simon, In Doubt, 62; Nancy M. Steblay, “A Meta-Analytic Review of the Weapon Focus Effect,” Law and Human Behavior 16 (1992): 413–24.

  Our memories may also be compromised: Lorraine Hope et al., “Witnesses in Action: The Effects of Physical Exertion on Recall and Recognition,” Psychological Science 23 (2012): 386, doi: 10.1177/0956797611431463, http://pss.sagepub.com/​content/​23/4/386.

  In one simulation study: Hope et al., “Witnesses in Action,” 387–88.

  Not only did they struggle to recall: Hope et al., “Witnesses in Action,” 387–88.

  One implication is that when: Hope et al., “Witnesses in Action,” 386.

  It’s likely that they just: Hope et al., “Witnesses in Action,” 388–89.

  Yet these officials have significant: Simon, In Doubt, 57.

  And the processes and practices we use: Of course, the two types of factors often interact with each other: someone who sees a suspect in low light for a short period of time is likely to be more susceptible to the misleading influence of a police officer. Simon, In Doubt, 57–58.

  It’s strange, then, to discover: Simon, In Doubt, 69. For example, in 2007, the Georgia Innocence Project found that 82 percent of Georgia’s law enforcement agencies had no recorded standardized eyewitness identification procedure. Dorie Turner, “DNA Test Clears Man After 27 Years,” USA Today, December 11, 2007, http://usatoday30.usatoday.com/​news/nation/2007​-12-11-524839445_x.htm.

  A large majority of officers: Simon, In Doubt, 76 n. 130.

  The real-life rape case: Innocence Project, “John Jerome White.”

  When a Georgia Bureau of Investigations: Innocence Project, “John Jerome White.”

  Those who view a composite image: Simon, In Doubt, 64; Gary L. Wells, Steve D. Charman, and Elizabeth A. Olson, “Building Face Composites Can Harm Lineup Identification Performance,” Journal of Experimental Psychology: Applied 11 (2005): 147–56.

  But the very process of working: Simon, In Doubt, 65; Wells, Charman, and Olson, “Building Face Composites,” 147–56.

  In White’s case, any distortion: We do not have a copy of the original photographic array because it was not preserved but it almost certainly showed White along with a number of other men. Harvard University Press, “Understanding Eyewitness Misidentifications.”

  On the positive side, photo arrays: Simon, In Doubt, 51–52. Show-ups constitute approximately half of identifications that end up being prosecuted. Simon, In Doubt, 69.

  Cops like show-ups because: Simon, In Doubt, 70.

  For one thing, when witnesses are shown: Neil Brewer and Gary Wells, “Eyewitness Identification,” Current Directions in Psychological Science 20 (2011): 24.

  After being told that they chose: Simon, In Doubt, 56; Lisa E. Hasel and Saul M. Kassin, “On the Presumption of Evidentiary Independence: Can Confessions Corrupt Eyewitness Identifications?” Psychological Science 20 (2009): 122–26.

  The good news is that: Brewer and Wells, “Eyewitness Identification,” 24; Simon, In Doubt, 73.

  Furthermore, showing multiple photographs: Innocence Project, Reevaluating Lineups: Why Witnesses Make Mistakes and How to Reduce the Chance of Misidentification (New York:

  Benjamin N. Cardozo School of Law, Yeshiva University), http://www.innocenceproject.org/​docs/Eyewitness_ID​_Report.pdf; Gary L. Wells, “The Psychology of Lineup Identifications,” Journal of Applied Social Psychology 14 (1983): 89–103.

  There is an easy solution here: Simon, In Doubt, 71. The potential drawback of sequential lineups is that, although they have been consistently shown to reduce false identifications, in certain studies they also reduced some correct identifications. Simon, In Doubt, 71.

  Perhaps the biggest problem: Rankin, “Innocent Man’s Conviction.”

  Time is the enemy of eyewitness accuracy: Brewer and Wells, “Eyewitness Identification,” 24.

  Indeed, the most precipitous drop: Simon, In Doubt, 66.

  In one study, witnesses who identified a perpetrator: Simon, In Doubt, 66; Tim Valentine, Alan Pickering, and Stephen Darling, “Characteristics of Eyewitness Identification that Predict the Outcome of Real Lineups,” Applied Cognitive Psychology 17 (2003): 983–84, 988. However, in the period between a month and six months, the proportion of correct identifications seems to level out.

  Although it’s less common than some: Simon, In Doubt, 69.

  One of the basic principles of creating: Brewer and Wells, “Eyewitness Identification,” 25.

  So a lineup may really: Simon, In Doubt, 72. Think about it this way: if someone who had not witnessed the crime could read
the description of the perpetrator and easily pick the suspect out of the lineup (or quickly eliminate two of the fillers), the witness’s identification is fairly worthless. That seems pretty common sense and, yet, there are numerous cases in which the suspect was the only person who met the witness’s description of having facial hair or pockmarked skin or crossed eyes. Garrett, Convicting the Innocent, 58–59.

  In White’s case, the victim initially: Garrett, “Introduction,” 672; Garrett, Convicting the Innocent, 66.

  She said he had short hair: Harvard University Press, “Understanding Eyewitness Misidentifications.”

  Flip back to the photograph: Harvard University Press, “Understanding Eyewitness Misidentifications.”

  Moreover, his hair is fairly long: Harvard University Press, “Understanding Eyewitness Misidentifications.”

  Indeed, the only man who seems: Harvard University Press, “Understanding Eyewitness Misidentifications.”

  There is substantial evidence that: Simon, In Doubt, 96.

  The process of retrieving memories: Simon, In Doubt, 96.

  This unconscious transference can arise: Brewer and Wells, “Eyewitness Identification,” 25.

  In fact, there is some evidence: Garrett, “Introduction,” 682.

  More often the problem arises when: Simon, In Doubt, 66.

  Experimental evidence confirms that having: Simon, In Doubt, 66; Amina Memon et al., “Eyewitness Recognition Errors: The Effects of Mugshot Viewing and Choosing in Young and Old Adults,” Memory and Cognition 30 (2002): 1219–27.

  In White’s case, the second procedure: Harvard University Press, “Understanding Eyewitness Misidentifications”; Rankin, “Innocent Man’s Conviction.”

  What they did not realize is that: Innocence Project, “John Jerome White.”

  The victim may have felt: Rankin, “Innocent Man’s Conviction.”

  That is because a witness’s level: Brewer and Wells, “Eyewitness Identification,” 25; Gary L. Wells and Amy L. Bradfield, “ ‘Good You Identified the Suspect’: Feedback to Eyewitnesses Distorts Their Reports of the Witnessing Experience,” Journal of Applied Psychology 83 (1998): 372–73.

  When a police officer offers: Brewer and Wells, “Eyewitness Identification,” 25; Simon, In Doubt, 75.

  After a witness observes a crime: Simon, In Doubt, 101–02.

  Some of this information may come: Simon, In Doubt, 101–02.

  There is, of course, the potential: Simon, In Doubt, 101–03.

  In one recent study: Frenda, Nichols, and Loftus, “Current Issues and Advances in Misinformation Research,” 21.

  After looking at the photos: Frenda, Nichols, and Loftus, “Current Issues and Advances in Misinformation Research,” 21.

  When participants were asked: Frenda, Nichols, and Loftus, “Current Issues and Advances in Misinformation Research,” 21.

  In another study, two groups: Elizabeth F. Loftus and John C. Palmer, “Reconstruction of Automobile Destruction: An Example of the Interaction Between Language and Memory,” Journal of Verbal Learning and Verbal Behavior 13 (1974): 585.

  When the word smashed was used: Loftus and Palmer, “Reconstruction of Automobile Destruction,” 585.

  Participants in the “smashed” group: Loftus and Palmer, “Reconstruction of Automobile Destruction,” 585.

  Young children and the elderly appear: Frenda, Nichols, and Loftus, “Current Issues and Advances in Misinformation Research,” 21; Simon, In Doubt, 114.

  Perhaps most shocking is that: Frenda, Nichols, and Loftus, “Current Issues and Advances in Misinformation Research,” 22.

  A number of studies have shown: Frenda, Nichols, and Loftus, “Current Issues and Advances in Misinformation Research,” 22.

  One group of researchers found that: Sacchi, Agnoli, and Loftus, “Changing History,” 1006–07.

  Both verbal and nonverbal cues: Simon, In Doubt, 74.

  It seems like good advice and harmless: Simon, In Doubt, 74.

  And a simple cough, sigh, or gesture: Chris Opfer, “The Problem with Police Line-Ups,” Atlantic, February 19, 2013, http://www.theatlanticcities.com/​politics/2013/02​/problem-police-line-ups/4724/.

  In one study, when an experimenter: Daniel J. Gurney, Karen J. Pine, and Richard Wiseman, “The Gestural Misinformation Effect: Skewing Eyewitness Testimony Through Gesture,” American Journal of Psychology 126 (2013): 305.

  Interviews are especially fraught: Ronald Fisher, Rebecca Milne, and Ray Bull, “Interviewing Cooperative Witnesses,” Current Directions in Psychological Science (2011): 16; Simon, In Doubt, 112.

  Since most officers have very little: Fisher, Milne, and Bull, “Interviewing Cooperative Witnesses,” 16; Simon, In Doubt, 112.

  Among other things, they fail: Fisher, Milne, and Bull, “Interviewing Cooperative Witnesses,” 16; Simon, In Doubt, 112.

  When they reach a dead end: Simon, In Doubt, 94.

  This may be effective on occasion: Simon, In Doubt, 94, 114.

  And the more that detectives repeat: Simon, In Doubt, 113.

  However, research suggests that most judges: Simon, In Doubt, 55.

  And they are often oblivious: Simon, In Doubt, 151–52.

  Compounding the problem is that: Simon, In Doubt, 152.

  For instance, jurors are two to three: Simon, In Doubt, 115, 153; Kevin Krug, “The Relationship Between Confidence and Accuracy: Current Thoughts of the Literature and a New Area of Research,” Applied Psychology in Criminal Justice 3 (2007): 7–8.

  When a woman like the victim: Garrett, Convicting the Innocent, 66.

  Jurors appear to be particularly impressed: Simon, In Doubt, 154.

  Yet these identifications might: Simon, In Doubt, 155.

  They believe that standard legal tools: Garrett, “Introduction,” 682.

  In his 1908 book, On the Witness Stand: Hugo Münsterberg, On the Witness Stand: Essays in Psychology and Crime (New York: Doubleday, Page, 1908), 51.

  All of a sudden: Münsterberg, On the Witness Stand, 51.

  The men shouted at each other: Münsterberg, On the Witness Stand, 52.

  A few moments later: Münsterberg, On the Witness Stand, 52.

  Given that a criminal investigation was: Münsterberg, On the Witness Stand, 52.

  Unbeknownst to them, the entire: Münsterberg, On the Witness Stand, 52.

  The results were disheartening: Münsterberg, On the Witness Stand, 52–53.

  According to Münsterberg, when: Münsterberg, On the Witness Stand, 31.

  Indeed, “in a thousand courts”: Münsterberg, On the Witness Stand, 43.

  In the direct aftermath: Downey, “Sharper Eyewitnessing”; Rankin, “Innocent Man’s Conviction.”

  But other than the creation: “Editorial: Georgia Should Have Eyewitness ID Protocol,” Athens Banner Herald, September 23, 2011, http://onlineathens.com/​stories/092311​/opi_889162565.shtml; Garrett, “Introduction,” 673.

  In the vast majority of jurisdictions: Garrett, “Introduction,” 675, 680–82.

  Of course, some progress: “Hugo Münsterberg,” accessed May 18, 2014, http://www.famouspsychologists.org/​hugo-munsterberg/.

  In the last thirty years: Liptak, “34 Years Later, Supreme Court Will Revisit Eyewitness IDs.”

  As Münsterberg put it: Münsterberg, On the Witness Stand, 11.

  As I mentioned, studies: Garrett, “Introduction,” 683.

  In almost half of those cases: Innocence Project, Reevaluating Lineups.

  As a spokesman for the Georgia Bureau: Rankin, “Innocent Man’s Conviction.”

  In 2001 the attorney general: Opfer, “The Problem with Police Line-Ups”; Erica Goode and John Schwartz, “Police Lineups Start to Face Fact: Eyes Can Lie,” New York Times, August 28, 2011, http://www.nytimes.com/​2011/08/​29/us/29witness.html?hp; State of New Jersey, Office of the Attorney General, “Attorney General Guidelines for Preparing and Conducting Photo and Live Lineup Identification Procedures,” April 18, 2001, http://www.innocenceprojec
t.org/​docs/NJ_​eyewitness.pdf.

  The police are also instructed: State of New Jersey, Office of the Attorney General, “Attorney General Guidelines for Preparing and Conducting Photo and Live Lineup Identification Procedures,” April 18, 2001, http://www.innocenceproject.org/​docs/NJ_​eyewitness.pdf; Goode, “Police Lineups Start to Face Fact.”

  Writing of the “troubling lack”: State v. Henderson, 27 A.3d 872, 218 (N.J. 2011); Garrett, “Introduction,” 680.

  Even when disputed evidence: Benjamin Weiser, “In New Jersey, Rules Are Changed on Witness IDs,” New York Times, August 24, 2011, http://www.nytimes.com/​2011/08/25/nyregion/​in-new-jersey-rules-changed-on-witness-ids.html?_r=2&hp.

  Reformers hope that New Jersey: Goode and Schwartz, “Police Lineups Start to Face Fact.”

  One of the best existing tools: Fisher, Milne, and Bull, “Interviewing Cooperative Witnesses,” 16, 18; Frenda, Nichols, and Loftus, “Current Issues and Advances in Misinformation Research,” 22.

  Based on insights: Fisher, Milne, and Bull, “Interviewing Cooperative Witnesses,” 16–17; Frenda, Nichols, and Loftus, “Current Issues and Advances in Misinformation Research,” 22.

  Studies have documented that: Fisher, Milne, and Bull, “Interviewing Cooperative Witnesses,” 17.

  In revolutionizing our eyewitness system, we should also support the development of new investigative methods. There are many promising avenues on the horizon, from improving recall of memory details by employing eye-closure or using timelines to improving identification accuracy by forcing witnesses to make decisions quickly but permitting less precision. Annelies Vredeveldt and Steven D. Penrod, “Eye-closure Improves Memory for a Witnessed Event Under Naturalistic Conditions,” Psychology, Crime and Law 1 (2012): 1; “Witnesses Given New Tool to Fight Gang Crime,” UoP News, March 19, 2013, accessed May 21, 2014, http://www.port.ac.uk/​uopnews/2013/03/19/​witnesses-given-new-tool-to-fight-gang-crime/; Association for Psychological Science, “Having to Make Quick Decisions Helps Witnesses Identify the Bad Guy in a Lineup,” August 28, 2012, http://ow.ly/​djveA; Association for Psychological Science, “Unusual Suspects: How to Make Witnesses More Reliable,” March 5, 2012, http://www.psychologicalscience.​org/​index.php/news/​unusual-suspects-how-to-make-witnesses-more-reliable.html#hide.