Unfair

by Adam Benforado

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

  The benefits of that approach suggest: Others have made similar suggestions. Liptak, “34 Years Later, Supreme Court Will Revisit Eyewitness IDs”; Simon, In Doubt, 81.

  As Hugo Münsterberg argued: Münsterberg, On the Witness Stand, 44–45.

  Münsterberg thought that the path: Münsterberg, On the Witness Stand, 44–45, 194. According to Münsterberg, we need to admit what we don’t know and seek help: “No juryman would be expected to follow his general impressions in the question as to whether the blood on the murderer’s shirt is human or animal. But he is expected to make up his mind as to whether the memory ideas of a witness are objective reproductions of earlier experience or are mixed up with associations and suggestions.” Münsterberg, On the Witness Stand, 45.

  7. How to Tell a Lie ~ The Expert

  Woken up by the drumbeat: Seth Mydans, Richard W. Stevenson, and Timothy Egan, “Seven Minutes in Los Angeles,” New York Times, March 18, 1991, http://www.nytimes.com​/1991/03/18/us/​seven-minutes-​los-angeles-special-​report-videotaped-beating-officers-puts-full.html​?module=Search&mabReward=relbias:r,{%221=%22:=%22RI:5=%22}=&pagewanted=1; The “Rodney King” Case: What the Jury Saw in California v. Powell, directed by Dominic Palumbo (New York: Courtroom Television Network, 1992), videocassette (VHS), 116 min.

  Though it was almost one: Mydans, Stevenson, and Egan, “Seven Minutes in Los Angeles.”

  In the first seconds: Mydans, Stevenson, and Egan, “Seven Minutes in Los Angeles.”

  He’s got Taser darts: Mydans, Stevenson, and Egan, “Seven Minutes in Los Angeles.”

  Over the next minute and a half: Mydans, Stevenson, and Egan, “Seven Minutes in Los Angeles.”

  He falls and they kick him: Mydans, Stevenson, and Egan, “Seven Minutes in Los Angeles.”

  He rolls on the ground: The “Rodney King” Case; Mydans, Stevenson, and Egan, “Seven Minutes in Los Angeles.”

  They drag him: Mydans, Stevenson, and Egan, “Seven Minutes in Los Angeles.”

  He suffered a concussion: Mydans, Stevenson, and Egan, “Seven Minutes in Los Angeles.”

  The officers claimed that: Lou Cannon, “Prosecution Rests Case in Rodney King Beating Trial,” Washington Post, March 16, 1993, http://tech.mit​.edu/​V113/N14/king.14w.html.

  And though it was speeding: Mydans, Stevenson, and Egan, “Seven Minutes in Los Angeles.” Drunk and on parole for a robbery conviction, King had sped by a cop at around 100 miles per hour and then led LAPD officers on an eight-mile chase. Koon v. United States, 518 U.S. 81, 86 (1996). When he had finally pulled over, he hadn’t complied with the police orders; unlike the two other passengers in the car who lay down on their stomachs with their arms behind their backs, he had resisted. Koon, 518 U.S. at 86.

  The tape was played over: Michael Goldstein, “The Other Beating,” Los Angeles Times, February 19, 2006, http://articles.latimes.com/​2006/feb/19/magazine/tm-holiday8.

  And before the trial: Douglas Linder, “The Rodney King Beating Trials,” Jurist, December 2001, http://jurist.law​.pitt.edu/​famoustrials/king.php.

  The details that emerged: Mydans, Stevenson, and Egan, “Seven Minutes in Los Angeles.”

  Earlier in the night: Associated Press, “Judge Says Remarks on ‘Gorillas’ may be Cited in Trial on Beating,” New York Times, June 12, 1991, http://www.nytimes.com/​1991/06/12/us​/judge-says-remarks-on-gorillas-may-be-cited-in-trial-on-beating.html.

  And after nearly killing King: Linder, “The Rodney King Beating.”

  In the hospital emergency room: Richard A. Serrano, “LAPD Officers Reportedly Taunted King in Hospital,” Los Angeles Times, March 23, 1991, http://articles.latimes.com/​1991-03-23/news​/mn-433_1_grand-jury.

  According to Tom Bradley: Mydans, Stevenson, and Egan, “Seven Minutes in Los Angeles.”

  President George Bush, whose law-and-order: Andrew Rosenthal, “Bush Calls Police Beating ‘Sickening,’ ” New York Times, March 22, 1991, http://www.nytimes.com/​1991/03/22/us/bush-calls-police​-beating-sickening.html​?module=Search&mabReward=relbias%3Ar%2C%7B%221%22%3A%22RI%3A5%22%7D. Bill Clinton, who would be elected president in the fall, remarked, “Like most of America I saw the tape of the beatings several times, and it certainly looks excessive to me….” Seth Mydans, “The Police Verdict,” New York Times, April 30, 1992, http://www.nytimes.com/​learning/general/onthisday​/big/0429.html?module=Search​&mabReward=relbias%​3Ar%2C%7B%221%22%3A%22RI%3A5%22%7D#article.

  The evidence was so clear: Rosenthal, “Bush Calls Police Beating ‘Sickening.’ ”

  Police departments around the country: Seth Mydans, “Los Angeles Policemen Acquitted in Taped Beating,” New York Times, April 30, 1992, http://www.nytimes.com/​learning/general/​onthisday/big/0429.​html?module=Search&mabReward=​relbias%3Ar%​2C%7B%221%22%​3A%22RI%3A5%22%7D#article.

  And Darryl F. Gates, the police chief: Mydans, “Los Angeles Policemen Acquitted.”

  On April 29, 1992, all four: Mydans, “The Police Verdict.”

  Stores were looted: Mydans, “The Police Verdict.”

  More than fifty people would die: Goldstein, “The Other Beating”; “Los Angeles Riots Fast Facts,” CNN.com, last modified May 3, 2014, http://www.cnn.com/​2013/09/18/us/​los-angeles-riots-fast-facts/.

  The acquittals that set off: Linder, “The Rodney King Beating Trials”; The “Rodney King” Case.

  The removal of the case: David Margolick, “As Venues Are Changed, Many Ask How Important a Role Race Should Play,” New York Times, May 23, 1992, http://www.nytimes.com/​1992/05/23/us/​as-venues-are​-changed-many-ask-how-important-a-role-race-should​-play.html?module=Search&​mabReward=relbias:​r,{%221=%22:=%22RI:7=%22}=&pagewanted=1.

  The real reason that Koon: Goldstein, “The Other Beating.”

  They watched Koon on the stand: The Rodney King Incident: Race and Justice in America, directed by Michael Pack (Princeton, NJ: Films for the Humanities and Sciences, 1998), videocassette (VHS), 56 min.

  They looked at his relaxed body: The Rodney King Incident.

  They listened to his measured voice: The Rodney King Incident.

  They watched how he’d look: The Rodney King Incident.

  They met his gaze: The Rodney King Incident; Christine Pelisek, “L.A. Riots Anniversary: Stacey Koon’s Disturbing Testimony,” Daily Beast, April 28, 2012, http://www.thedailybeast.com/​articles/​2012/04/28/​l-a-riots-anniversary-stacey-koon​-s-disturbing-testimony.html. Here, the defense attorney Darryl Mounger had asked Koon why King had been beaten so violently. Koon was quite forthright that it was a violent and brutal beating, but emphasized that it was necessary to “control an aggressive combative suspect.” Pelisek, “L.A. Riots Anniversary.”

  They took it all in: The Rodney King Incident.

  Likewise, the jury ate up: Bill Nichols, Blurred Boundaries: Questions of Meaning in Contemporary Culture (Bloomington: Indiana University Press, 1994), 30.

  Duke, a former LAPD self-defense instructor: The Rodney King Incident.

  Barrel-chested with a brown mustache: The Rodney King Incident. Unsurprisingly, jurors are less likely to accept what an expert says when there is a salient reason to think he might be biased. Owen D. Jones et al., “Neuroscientists in Court,” Nature Review Neuroscience 14 (2013): 732. The prosecution’s expert on use of force, Commander Michael Bostic, was effectively discredited when the defense team raised the suggestion that Bostic was simply acting as a mouthpiece for the L.A. police chief—his boss—who wanted the officers convicted so he could wipe away the problem. Linda Deutsch, “Witness Denies Being Influenced by Gates,” Los Angeles Times, April 14, 1992, http://articles.latimes.com/​1992-04-14/​local/me-1_1_excessive​-force. By focusing our attention on salient biases like this, we may overlook more powerful skew that lies below the surface.

&n
bsp; “I never form an opinion”: “Excerpts from the LAPD Officers’ Trial,” Famous Trials, accessed August 27, 2014, http://law2.umkc.edu/​faculty/projects​/ftrials/lapd/​kingtranscript.html.

  No: “Excerpts from the LAPD Officers’ Trial.”

  The officers were following: The Rodney King Incident; “Excerpts from the LAPD Officers’ Trial.”

  Just as important: Nichols, Blurred Boundaries, 30.

  Duke, trading on the power: Carolyn Boyes-Watson, Crime and Justice: Learning Through Cases (Lanham, MD: Rowman & Littlefield, 2014), 220. Steven Chermak and Frankie Y. Bailey, eds., Crimes and Trials of the Century Volume 1: From the Black Sox Scandal to the Attica Prison Riots, (Westport, CT: Greenwood Press, 2007), 148; The Rodney King Incident; “Excerpts from the LAPD Officers’ Trial.”

  It seemed like an entirely natural: Helen E. Allison and Richard J. Hobbs, Science and Policy in Natural Resource Management: Understanding System Complexity (New York: Cambridge University Press, 2006), 85.

  And the particular techniques: Allen Feldman, “On Cultural Anesthesia: From Desert Storm to Rodney King,” American Ethnologist 21, no. 2 (May 1994): 411.

  Duke’s air of objective authority: Feldman, “On Cultural Anesthesia,” 411.

  Even more masterful: Feldman, “On Cultural Anesthesia,” 412.

  His approach focused the attention: Feldman, “On Cultural Anesthesia,” 412.

  We assume that the result: There is an evolutionary narrative here, too: with capacities honed over 250,000 generations—five million years since we diverged with our chimpanzee siblings—it stands to reason that we are no amateurs when it comes to spotting liars and miscreants. Paul H. Robinson, Robert Kurzban, and Owen Jones, “The Origins of Shared Intuitions of Justice,” Vanderbilt Law Review 60 (2007): 1643 n. 35. To gain the significant benefits of group living, we had to minimize the costs. Robinson, Kurzban, and Jones, “The Origins,” 1647–49. Those less able to discern deception, deceit, and dishonesty in the people around them would have been at a comparative disadvantage in the competition to survive and pass on their genes. Robinson, Kurzban, and Jones, “The Origins,” 1647–49. Evolutionary pressures, then, left us natural-born experts in lie detection—or so we assume.

  The Model Criminal Jury Instructions: “About the Court,” United States Court of Appeals for the Third Circuit, http://www.ca3.uscourts.gov/​about-​court; MODEL CRIMINAL JURY INSTRUCTIONS: CREDIBILITY OF WITNESSES § 3.04 (3d Cir. 2012).

  Before trial, Third Circuit judges: MODEL CRIMINAL JURY INSTRUCTIONS §3.04.

  Detecting lies isn’t rocket science: MODEL CRIMINAL JURY INSTRUCTIONS §3.04.

  Jurors don’t even have to: You must, however, be over the age of eighteen to serve on a federal jury. “Juror Qualifications, Exemptions and Excuses,” United States Courts, accessed May 18, 2014, http://www.uscourts.gov/​FederalCourts/JuryService​/JurorQualificaitons.aspx.

  Our system of justice celebrates: MODEL CRIMINAL JURY INSTRUCTIONS: ROLE OF THE JURY § 1.02 (3d Cir. 2012).

  Those officially designated as experts: FED. R. EVID. 702.

  In the Third Circuit, for example: MODEL CRIMINAL JURY INSTRUCTIONS: OPINION EVIDENCE (EXPERT WITNESSES) § 2.09 (3d Cir. 2012).

  In fact, a juror “may disregard”: MODEL CRIMINAL JURY INSTRUCTIONS § 2.09.

  In experiments and surveys: Dan Simon, “The Limited Diagnosticity of Criminal Trials,” Vanderbilt Law Review 64 (2011): 175–76. And it is not just Americans or Westerners who put a lot of stock in the link between truth and maintaining eye contact, either—when researchers surveyed respondents from over fifty countries, some two-thirds of people suggested that averting one’s gaze was linked to lying. Simon, “Limited Diagnosticity,” 176.

  Police officers and others: Simon, “Limited Diagnosticity,” 175–76.

  If you remember, with the Reid technique: “The Reid Technique,” John E. Reid & Associates, Inc., accessed May 18, 2014, http://www.reid.com/​educational_info/​critictechnique.html; “Beyond Good Cop/Bad Cop: A Look at Real-Life Interrogations,” NPR, December 5, 2013, http://www.npr.org/​2013/12/05/​248968150/beyond-good-cop-bad-cop-a-look-at-real-life-interrogations.

  And to do that: Fred E. Inbau et al., Criminal Interrogation and Confessions (Burlington, MA: Jones & Bartlett Learning, 2011), 121. According to the Reid technique, by asking challenging questions, a police officer can elicit different posture, eye contact, facial expressions, and movements of the hands and feet based on whether the suspect is being honest or deceitful. “The Reid Technique,” John E. Reid & Associates, Inc. At the opening of the chapter “Behavior Symptom Analysis,” the Reid technique manual quotes from Hamlet: “There is a kind of confession in your looks, which your modesties have not craft enough to color.” Inbau et al., Criminal Interrogation, 101.

  So, for example, “a suspect”: Inbau et al., Criminal Interrogation, 135. While embracing gaze aversion as a relevant cue to lying, the Reid manual does caution that averted gaze can occasionally arise from eye disability, psychological disorders, or cultural differences. Inbau et al., Criminal Interrogation, 135.

  Knowing the signs of deceit: Inbau et al., Criminal Interrogation, 121–134; “Beyond Good Cop/Bad Cop.” Since this training manual, and others like it, cast the notion that these “tells” reveal lying as a general truism, it’s no surprise that police officers rely on these cues in a variety of circumstances outside of interviewing suspects, from talking to witnesses at a crime scene to routine traffic stops.

  Similarly, in evaluating the believability: Simon, “Limited Diagnosticity,” 174.

  In the Third Circuit, for example: MODEL CRIMINAL JURY INSTRUCTIONS §3.04.

  Indeed, we have such faith: Max Minzner, “Detecting Lies Using Demeanor, Bias, and Context,” Cardozo Law Review 29 (2008): 2559; Simon, “Limited Diagnosticity,” 174. A strong belief in the power of demeanor evidence underlies some of the core structures of our criminal justice system. Simon, “Limited Diagnosticity,” 174. As the Supreme Court explained, the great benefit of the Confrontation Clause requirement that witnesses tesify in person is that it provides the accused with “an opportunity…of compelling [the witness] to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief.” Mattox v. United States, 156 U.S. 237, 242–43 (1895); Donelly v. California, 228 U.S. 243 (1913) (quoted in Minzner, “Detecting Lies,” 2559). Likewise, one of the reasons that appellate courts defer to the factual determinations of the trial court is that appellate judges are not able to observe the testimony offered in a case. Minzner, “Detecting Lies,” 2559. In the Supreme Court’s view, only those who are there during the actual trial are in a position to “be aware of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding of and belief in what is said.” Anderson v. Bessemer City, 470 U.S. 564, 575 (1985) (quoted in Simon, “Limited Diagnosticity,” 174). Vital information is missed when a judge only reads a transcript of what was said.

  If a jury watches a defendant: MODEL CRIMINAL JURY INSTRUCTIONS § 3.04; Minzner, “Detecting Lies,” 2559. Even in less dire circumstances, judgments of witness credibility often turn the direction of trials; and these judgments can also have an effect in the weeks and months before a jury is chosen, as police officers conduct investigations to gather the evidence used by prosecutors. Simon, “Limited Diagnosticity,” 174.

  The problem is that when: Bella M. DePaulo et al., “Cues to Deception,” Psychological Bulletin 129, no. 1 (2003): 90–106; Simon, “Limited Diagnosticity,” 176–77.

  The handful that are somewhat predictive: DePaulo et al., “Cues to Deception,” 92–94; Simon, “Limited Diagnosticity,” 176–77.

  Numerous studies have shown, for example: Lucy Akehurst et al., “Lay Persons’ and Police Officers’ Beliefs Regarding Deceptive Behavior,” Applied Cognitive Psychology 10 (1996): 467–68; Simon, “Limited Diagnosticity,” 176 n.
140; Siegfried L. Sporer and Barbara Schwandt, “Moderators of Nonverbal Indicators of Deception: A Meta-Analytic Synthesis,” Psychology, Public Policy and Law 13, no. 1 (2007): 1, 19–22; “TSA Should Limit Future Funding for Behavior Detection Activities,” United States Government Accountability Office, November 2013, 17, http://www.gao.gov/​assets/660/​658923.pdf; DePaulo et al., “Cues to Deception,” 93–94; Minzner, “Detecting Lies,” 2565.

  Even worse, when people are under: Charles F. Bond, Jr., and Bella M. DePaulo, “Accuracy of Deception Judgments,” Personality and Social Psychology Review 10, no. 3 (2006): 214, 231; Simon, “Limited Diagnosticity,” 178–79.

  Put the affable and handsome: Maureen O’Sullivan, “The Fundamental Attribution Error in Detecting Deception: The Boy-Who-Cried-Wolf Effect,” Personality and Social Psychology Bulletin 29, no. 10 (2003): 1316, 1320, 1323–24; Simon, “Limited Diagnosticity,” 180.

  Likewise, tell observers that: Pär Anders Granhag and Leif A. Strömwall, “Effects of Preconceptions on Deception Detection and New Answers to Why Lie-Catchers Often Fail,” Psychology, Crime and Law 6 (2000): 197–218; Simon, “Limited Diagnosticity,” 180.

  Initial evidence suggests: Karel Kleisner et al., “Trustworthy-Looking Face Meets Brown Eyes,” PLOS ONE 8, no. 1 (2013): 3–6, doi: 10.1371/journal.pone.0053285; Public Library of Science, “Brown-eyed People Appear More Trustworthy than Blue-eyed People: People Judge Men’s Trustworthiness Based on Face Shape, Eye Color,” ScienceDaily, January 9, 2013, http://www.sciencedaily.com/​releases/2013/​01/130109185850.htm.

  According to the researchers: Kleisner et al., “Trustworthy-Looking Face,” 1, 6; Public Library of Science, “Brown-eyed People.” Another theory is that rounder faces are perceived to be more baby-faced, and those with baby faces are viewed as more honest. Kleisner et al., “Trustworthy-Looking Face,” 1, 3–4.

  In a recent analysis of more than: In the sample, people accurately classified about 60 percent of truths and 48 percent of lies. Bond, Jr., and DePaulo, “Accuracy of Deception Judgments,” 223, 230–31.