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#408 Wrongful Conviction: Junk Science - Eyewitness Testimony · Wrongful Conviction

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Speaker 1: Hey, folks, Kate Judson here. I'm a lawyer and the
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Speaker 1: executive director of the Center for Integrity and Forensic Sciences.
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Speaker 1: We're back with another episode of Junk Science, a series
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Speaker 1: we first released in twenty twenty, but these stories are
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Speaker 1: just as relevant as ever. This week we'll hear about
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Speaker 1: eyewitness testimony. Of all the types of forensic evidence we've
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Speaker 1: heard about in this series, this one is the most
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Speaker 1: personal and mind bending, because each of us hold memories
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Speaker 1: we believe are one hundred percent true, even when they aren't.
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Speaker 1: Imagine what you did last weekend, where you were, who
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Speaker 1: you saw, what you did. It feels like you can
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Speaker 1: playback specific events in your mind like a movie.
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Speaker 2: Right.
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Speaker 1: But science and psychology have shown us over and over
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Speaker 1: again that our minds are not tape recorders and that
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Speaker 1: our memories aren't easily changed. It can be uncomfortable to
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Speaker 1: admit our own fallibility, but when it comes to a
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Speaker 1: decision that will decide someone's life, it's worth keeping that
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Speaker 1: fallibility in mind.
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Speaker 3: It's a warm summer evening in Virginia where a nine
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Speaker 3: to one to one operator answers a call. There's a
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Speaker 3: woman on the other end of the line. She says
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Speaker 3: she's been attacked. Police arrive at the victim's home and
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Speaker 3: they take a statement. The victim, a white woman, says
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Speaker 3: that as she was walking to her apartment, she came
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Speaker 3: across a man laying on the ground. He was clutching
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Speaker 3: his leg. She thought he must have fallen off the
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Speaker 3: bike that was toppled over next to him, so she
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Speaker 3: bent down to help him, and that's when he grabbed her,
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Speaker 3: beat her, and raped her. The victim told the police
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Speaker 3: everything she could remember about her attacker. She said the
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Speaker 3: man was black with a light complexion. He had a mustache,
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Speaker 3: a beard, and some scratches on his face. Before the
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Speaker 3: attacker left the scene of the crime, he told the
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Speaker 3: victims some vague details about his life. He told her
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Speaker 3: that he had quote had other white women. The police
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Speaker 3: escort the victims of the hospital, where a rape kit
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Speaker 3: is taken and sent off to a crime lab. You're
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Speaker 3: eighteen years old, just graduated from high school. Since you
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Speaker 3: were thirteen, you knew that you wanted to be a firefighter,
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Speaker 3: and now you're doing it. You're attending the fire academy
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Speaker 3: this summer. You're also working at a theme park collecting tickets,
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Speaker 3: running the rides. It's not the most glamorous job, but
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Speaker 3: hey pays the rent. A few months ago, you moved
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Speaker 3: out of her parents' house and into an apartment with
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Speaker 3: your girlfriend. Everyone says you're too young, but you don't
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Speaker 3: care what they think. You're planning your future together. One evening,
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Speaker 3: you finish up your shift at the theme park and
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Speaker 3: you head to the office to clock out. You see
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Speaker 3: a cop there chatting with your boss. You don't think
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Speaker 3: much of it. There's always some security or police at
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Speaker 3: the park, but then you see your boss sort of
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Speaker 3: flick his head in your direction, and when you try
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Speaker 3: to leave the office, the cop stops you. He says, hey,
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Speaker 3: let me talk to you for a minute. Have you
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Speaker 3: heard about the rape that took place a few days
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Speaker 3: ago not too far from here. It's like he knew
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Speaker 3: that this crime had been on your mind. You've been
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Speaker 3: making your girlfriend lock the door behind you every time
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Speaker 3: you leave the house. You say, yes, sir, I did
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Speaker 3: hear about it? Do you know who did it? The
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Speaker 3: officer says he has some questions and asks you if
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Speaker 3: you'll come to the police station with him. When you
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Speaker 3: get there, the officer takes you into a small room
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Speaker 3: with a table and a few chairs. He says, Wait here,
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Speaker 3: you'll stand in as part of a police lineup, and
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Speaker 3: I'll come back and get you in a few minutes.
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Speaker 3: It dawns on you you're not just here to answer questions.
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Speaker 3: You're a suspect in this crime. You call out to
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Speaker 3: the officer, Wait what am I doing here? He says,
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Speaker 3: The rapists said that he had been with other white women.
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Speaker 3: Don't you live with your white girlfriend? He closes and
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Speaker 3: locks the door behind him. You lean over in your
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Speaker 3: seat and cover your face with your hands. Who would
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Speaker 3: have known information about your personal life and try to
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Speaker 3: use it against you? Was it one of those cops
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Speaker 3: that used to stop by the fire station when you
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Speaker 3: were at the training academy. Maybe they saw your girlfriend
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Speaker 3: dropping off dinner at the fire station one night. You
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Speaker 3: stop and take a deep breath, reminding yourself that being
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Speaker 3: a black man living with your white girlfriend isn't a crime.
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Speaker 3: At least it's not supposed to be, not anymore. And
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Speaker 3: yet none of this seems to matter someone. Some cop
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Speaker 3: already had their eye on you for this very reason.
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Speaker 3: But you didn't do anything wrong, and you're hopeful that
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Speaker 3: the victim's memory of her attacker will set things straight.
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Speaker 3: What you don't know is that just down the hall
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Speaker 3: from where you're sitting, the woman who called nine to
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Speaker 3: one one a few days ago is sitting in front
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Speaker 3: of six pictures. An officer tells her to pick out
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Speaker 3: the face of the man who attacked her. All of
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Speaker 3: the photos set out in front of her are black
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Speaker 3: and white mugshots except for one, yours. You've never been
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Speaker 3: in trouble with the law, and so you don't have
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Speaker 3: a mugshot. Instead, the cop that showed up at your
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Speaker 3: job took a picture of your ID card from the
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Speaker 3: theme park and slipped it into the photo lineup. Yours
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Speaker 3: is not just the only one that's not a mugshot,
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Speaker 3: it's also the only one that's printed in color, so
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Speaker 3: it immediately grabs the woman's attention. She chooses your photo
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Speaker 3: and says, I think that's him. The officer comes back
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Speaker 3: in to get you. He brings you into a room
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Speaker 3: with a window in it and asks you to stand
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Speaker 3: in a line with some men. These other men are
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Speaker 3: known as fillers. None of these fillers are potential suspects.
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Speaker 3: The point of them is to see if the victim
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Speaker 3: can identify your face. Amongst others who are supposed to
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Speaker 3: resemble the suspect. None of these other people's faces were
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Speaker 3: in any of the photos the victim saw except for yours,
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Speaker 3: your color photo ID. That's the only photo that matches
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Speaker 3: the face of anyone in this lineup. There's an officer
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Speaker 3: at the front of the room and he starts barking
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Speaker 3: out orders to you and the fillers. Stand there and
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Speaker 3: look straight ahead. Now turn to your right, Now turn
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Speaker 3: to your left. You follow the directions that are being
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Speaker 3: shouted out. You can't see her because she's on the
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Speaker 3: other side of a one way mirror, but the victim
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Speaker 3: points you out. She says it's him. I'm sure of it,
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Speaker 3: And that's all the information the cops need to hear,
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Speaker 3: and you are arrested on the spot. You sit in
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Speaker 3: jail wondering what in the world you're supposed to make of.
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Speaker 3: How this woman mistook you for someone else. You look
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Speaker 3: nothing like the witnesses of description of her attacker. She'd
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Speaker 3: reported that he had light skin, a mustache, a beard,
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Speaker 3: and scratches on his face. You have dark skin, you're
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Speaker 3: almost always clean shaven. There are no scratches or marks
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Speaker 3: on your eighteen year old face. How could that picture
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Speaker 3: in her head, the memory of her attacker changed so
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Speaker 3: much in such a short amount of time. What is
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Speaker 3: it about that lineup that made her choose you? You
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Speaker 3: eventually stand trial in front of an all white jury
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Speaker 3: of eight women and four men. You were taught your
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Speaker 3: entire life to trust law enforcement, to believe in this
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Speaker 3: system of justice. The police, officers, judges, lawyers, jurors. They
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Speaker 3: were all there to figure out the truth, to do
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Speaker 3: the right thing. But that image comes shattering down when
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Speaker 3: the jury comes back and finds you guilty of rape, abduction, robbery,
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Speaker 3: and for sodomy. The judge sentences you to two hundred
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Speaker 3: and ten years in prison. After the sentence is read,
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Speaker 3: you slowly look behind you. You try to find your mom,
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Speaker 3: your family. You know they're sitting just behind you, but
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Speaker 3: you can't see a foot ahead of you. Everything goes black.
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Speaker 3: The story you just heard is based on the true
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Speaker 3: events of Marvin Andersen's wrongful conviction. Six years after he
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Speaker 3: was sentenced to life in prison, another man confessed to
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Speaker 3: attacking the woman who had misidentified Marvin. The man that
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Speaker 3: confessed presented new details to a judge that seemed to
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Speaker 3: prove his guilt in Marvin's innocence. Still, the judge did
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Speaker 3: not vacate marvin sentence. Marvin wrote a letter to the
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Speaker 3: Innocence Project and they took up his case. After years
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Speaker 3: of work, lawyers of the Innocence Project were finally able
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Speaker 3: to convince the judge to compare Marvin's DNA with the
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Speaker 3: DNA from seamen recovered from the victim. When the rape
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Speaker 3: kit was performed, Marvin was not a match, but another
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Speaker 3: man was a match, the man who had confessed to
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Speaker 3: the crime. After fifteen long years in prison, Marvin walked
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Speaker 3: free and became the ninety ninth person to be exonerated
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Speaker 3: based on DNA evidence. He's since become chief of the Hanover,
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Speaker 3: Virginia Fire Department and serves on the board of the
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Speaker 3: Innocence Project. I'm Josh Dubin, civil rights and criminal defense attorney,
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Speaker 3: an innocent ambassador to the Innocence Project in New York. Today.
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Speaker 3: On wrongful conviction junk science, we examine eyewitness testimony. When
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Speaker 3: a witness points to a suspect and says that's the
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Speaker 3: person who committed this crime, there is nothing more convincing
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Speaker 3: to a jury, but it is dangerously inaccurate. Over two
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Speaker 3: thirds of people who are later exonerated based on DNA
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Speaker 3: evidence or convicted based on eyewitness testimony. It may sound
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Speaker 3: like a simple premise, but in order for eyewitness testimony
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Speaker 3: to work and be reliable, we need to rely on
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Speaker 3: our own memories and those of others. But it turns out,
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Speaker 3: just as physical evidence can be manipulated, contaminated, or even planted,
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Speaker 3: so too can memories. In the early eighteen eh eighties,
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Speaker 3: Professor Wilhelm Want, the father of modern psychology, was giving
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Speaker 3: a lecture at the University of Leipzig in Germany. One
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Speaker 3: of his students attending the lecture was Hugo Munsterberg and
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Speaker 3: Hugo when he heard this lecture, he was hooked. He
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Speaker 3: was so fascinated by psychology and it began to study
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Speaker 3: under the father of psychology himself. After completing his studies,
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Speaker 3: Hugo started working at Harvard University, where he led the
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Speaker 3: Experimental Psychology Lab. Hugo was especially interested in the concrete,
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Speaker 3: everyday applications of psychology. He wanted to study if in
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Speaker 3: how psychology impacted juries and trial outcomes, and so he
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Speaker 3: began to run experiments on the memory of eyewitnesses. In
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Speaker 3: one of his famous experiments, Hugo tested the memories of
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Speaker 3: both adults and children. He showed them a photo. In
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Speaker 3: it there was a farmer sitting at a table eating
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Speaker 3: some soup. Hugo had his test subjects looked closely at
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Speaker 3: the photo, then he took the photo away. Hugo then
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Speaker 3: asked him opened ended questions about it, like what did
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Speaker 3: you see in the photo? To these questions, the witnesses responded,
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Speaker 3: there was a man in the photo eating his soup.
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Speaker 3: Their memories were accurate, But then Hugo started asking what
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Speaker 3: he called suggestive questions. He asked, for example, did you
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Speaker 3: see the stove in the room. Many of the eyewitnesses
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Speaker 3: answered yes, they saw the stove, but there was no
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Speaker 3: stove in the photo. Hugo found that through asking suggestive
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Speaker 3: questions like these, he was able to get his test
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Speaker 3: subjects to remember dozens of objects in the photo that
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Speaker 3: never existed. In another experiment, Hugo sat at a desk
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Speaker 3: at the front of a room and told his students,
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Speaker 3: remember every detail of what I'm about to do. Starting now.
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Speaker 3: With his right hand, Hugo took out a colorful disc
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Speaker 3: and began to spin it While staring at the disc
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Speaker 3: that he was spinning with his right hand. He used
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Speaker 3: his left hand to take out a pencil and write
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Speaker 3: something down on a piece of paper, Keeping that disk
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Speaker 3: spinning in his right hand, he used his left hand
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Speaker 3: again to take out a cigarette case, open it, take
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Speaker 3: out a cigarette, shut the case with a loud click,
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Speaker 3: and put it back into his pocket. At one hundred
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Speaker 3: students who saw this demonstration, only eighteen of them were
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Speaker 3: able to report what Hugo had done with his left hand,
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Speaker 3: and so Hugo was not only able to show that
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Speaker 3: witnesses might fabricate details of a memory that never existed,
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Speaker 3: but they are also likely to not remember many details
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Speaker 3: of events that happened right in front of their These
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Speaker 3: experiments also demonstrated that the memories of two different people
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Speaker 3: observing the same event or photo could be wildly different,
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Speaker 3: despite the fact that they had no stake in line
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Speaker 3: or making the outcome of the events appear to have
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Speaker 3: happened one way or another. Hugo also concluded that the
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Speaker 3: witness's own claim of certainty didn't necessarily mean that their
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Speaker 3: memories were more accurate. A witness might say, for example,
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Speaker 3: that they were absolutely certain that there was a stove
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Speaker 3: in the photo, or that he or she was certain
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Speaker 3: that all Hugo did was spin a disk in his
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Speaker 3: right hand. But even as they claimed certainty, there was
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Speaker 3: proof that their memories were incorrect. When his book on
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Speaker 3: these experiments was published in nineteen oh eight, The New
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Speaker 3: York Times wrote that his studies had the potential to
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Speaker 3: revolutionize courtroom procedure and to quote bring light and order
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Speaker 3: in domains where all or almost all, is darkness and confusion.
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Speaker 3: But that's not what happened, because Hugo also had many
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Speaker 3: critics who scoffed at his attempt to apply psychology to
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Speaker 3: the courtroom, and so courtroom procedure around eyewitness testimony was
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Speaker 3: not completely revolutionized. To this day, countless innocent men and
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Speaker 3: women are sent to prison based on faulty eyewitness testimony.
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Speaker 3: Over a half a century after Hugo's research was mocked,
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Speaker 3: psychologist Elizabeth Loftis took another look at eyewitness testimony with
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Speaker 3: a more modern take on Hugo's experiments. She was able
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Speaker 3: to prove just how unreliable eyewitness testimony is and why
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Speaker 3: it shouldn't be trusted as the gold standard of evidence.
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Speaker 3: In a courtroom or in a police lineup.
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Speaker 2: Many people, unfortunately, believe that memory works like a recording device.
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Speaker 2: You take in the information, you record it, you just
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Speaker 2: play it back the way some kind of video recorder
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Speaker 2: would work, and that is not really the way memory works.
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Speaker 2: What happens when we're remembering something is we tend to
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Speaker 2: take bits and pieces of experience, sometimes from different times
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Speaker 2: and places. We bring it together and we construct a memory.
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Speaker 2: So I like to think of memory a little bit more,
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Speaker 2: not like a recording device, but more like a Wikipedia page.
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Speaker 2: You can go in there and edit it, but so
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Speaker 2: can other people.
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Speaker 3: Today on our show, we're speaking with renowned psychologist Elizabeth Loftis.
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Speaker 3: Elizabeth is currently a professor at the University of California, Irvine.
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Speaker 3: She studies human memory, specifically the malleability of memory, which
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Speaker 3: of course is a huge factor in cases where eyewitness
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Speaker 3: testimony is used as evidence. So, Elizabeth, can you tell
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Speaker 3: us about some of the experiments that you've worked on
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Speaker 3: to study memories of eyewitnesses.
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Speaker 2: You know, one of the ways that I and my
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Speaker 2: collaborators have studied memory, and hundreds of studies, you know,
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Speaker 2: probably now forty fifty thousand participants over the course of
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Speaker 2: my career. One of the ways that we study memory
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Speaker 2: is we'll show people a simulated crime. For example, we
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Speaker 2: will then expose people to some new information about that crime.
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Speaker 2: So they might have seen a bad guy take a
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Speaker 2: wallet out of somebody's purse and he's wearing a green jacket,
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Speaker 2: but they then get misinformation from another witness or from
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Speaker 2: a leading question that the jacket was brown. And finally
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Speaker 2: we will ask our witnesses, tell me exactly what you saw,
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Speaker 2: give me as much detail as you can remember, and
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Speaker 2: many of them will and remember that the jacket was
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Speaker 2: brown and not green, or we can make them believe
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Speaker 2: the bad guy had curly hair instead of straight hair.
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Speaker 2: All by exposing people to new information, misleading information, it
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Speaker 2: impairs their own memory, and this is now referred to
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Speaker 2: in the psychological literature as the misinformation effect.
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Speaker 3: So give me another example. What are some other experiments
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Speaker 3: you did where misinformation just kind of gets slipped into
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Speaker 3: the person's memory without them even knowing it.
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Speaker 2: We've shown people a simulated accident. A car goes through
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Speaker 2: an intersection with a yield sign and then ends up
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Speaker 2: hitting a pedestrian, and pedestrian falls over a police officer
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Speaker 2: comes to tend to the pedestrian who's lying down on
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Speaker 2: the ground. Afterwards, our witnesses are asked a series of questions,
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Speaker 2: and one of those questions might be did another car
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Speaker 2: pass the red dots and when it was at the
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Speaker 2: intersection with the stop sign. Now, that is a very
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Speaker 2: clever question. Just so you can appreciate the cleverness you,
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Speaker 2: as the witness, think I'm asking you about whether another
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Speaker 2: car passed while the dotson was stopped. You revisualize the scene,
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Speaker 2: and in your visualization you might put in a stop
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Speaker 2: sign that I've mentioned as part of the question. You
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Speaker 2: think you're answering about whether another car stop, But this
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Speaker 2: stop sign kind of invades your consciousness, almost like a
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Speaker 2: trojan horse. You don't even detect that it's coming. And
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Speaker 2: after that, many people will then claim I saw a
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Speaker 2: stop sign at that intersection. And you can show them
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Speaker 2: two scenes, the scene with a stop sign or the
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Speaker 2: scene with a yield sign. They'll pick the one with
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Speaker 2: a stop sign. They have succumbed to the question and
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Speaker 2: fallen sway to its suggestion, and now it appears as
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Speaker 2: if this is their memory.
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Speaker 3: Now I want to get back to the way cops
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Speaker 3: influence a witness. I've dealt with cases where the cops
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Speaker 3: know who the suspect is and do things either consciously
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Speaker 3: or even unconsciously, I guess, to encourage the witness to
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Speaker 3: choose the person that they believe is their suspect. Have
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Speaker 3: you dealt with anything like that in your research.
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Speaker 2: One of my favorite examples a case I testified in
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Speaker 2: in California. There's a crime, the eyewitness has shown a
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Speaker 2: six pack six photographs. The eyewitness says, I really don't
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Speaker 2: reckonise anybody, and the officer says, wait a minute, I
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Speaker 2: see your eyes drifting down to number six. What's going
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Speaker 2: on there? Eventually number six it gets seized upon identified,
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Speaker 2: and that's the person who gets prosecuted. So there's a
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Speaker 2: highly suggestive thing going on here. I'm willing to give,
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Speaker 2: certainly to give these officers the benefit of the doubt
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Speaker 2: and say they they're not even aware in a way
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Speaker 2: of their own influence, and that a lot of what's
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Speaker 2: happening is is kind of unwitting.
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Speaker 3: So look, I'm an alleged expert in jury selection, and
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Speaker 3: people are always saying to me, like, how does this
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Speaker 3: affect you? Are you always trying to psychoanalyze me. So
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Speaker 3: tell me a little bit about how this, you know,
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Speaker 3: deep knowledge of memory impacts you. Do you find yourself
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Speaker 3: like not trusting your own memory at times?
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Speaker 2: Well, the one experience that I do have from all
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Speaker 2: all these decades of doing this kind of work is
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Speaker 2: I understand that along with those sort of bits of
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Speaker 2: truth are bits of fiction intermingled in there. And I'm
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Speaker 2: not bothered by that. I understand that's part of the
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Speaker 2: malleable nature of memory. I think what this acceptance has
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Speaker 2: done for me is it makes me a little bit
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Speaker 2: more tolerant of the mistakes that friends make, or family
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Speaker 2: members make, or even I myself might make. I don't
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Speaker 2: immediately assume somebody is a big fat liar. They could
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Speaker 2: honestly have a false memory, and I think it's a
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Speaker 2: kind of kinder way to feel about people.
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Speaker 3: Okay, so that's pretty interesting. Do you think this same
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Speaker 3: kindness as you refer to it, that you offer, let's say,
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Speaker 3: your friends, your family, even yourself. Do you think we
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Speaker 3: should offer witnesses the same kind of kindness in court cases?
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Speaker 2: Do you want to call these people a liar or
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Speaker 2: do you want to accept the fact that maybe some
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Speaker 2: kind of process has led them to develop a set
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Speaker 2: of beliefs and things that feel to them like memories,
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Speaker 2: and it is kinder even in a court case. I
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Speaker 2: think sometimes for lawyers who are challenging these memories to
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Speaker 2: talk about them as potentially false memories rather than talk
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Speaker 2: about the accuser as being a big, fat liar.
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Speaker 3: So you're an expert witness in a lot of cases
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Speaker 3: that depend on eyewitness testimony. You know, we've talked a
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Speaker 3: lot throughout the course of this podcast about how some
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Speaker 3: expert witnesses aren't basing their testimony on good science or facts.
24:50
Speaker 3: But you're not that kind of witness. I mean, you've
24:53
Speaker 3: been studying memory for years and years, and you've done
24:56
Speaker 3: experiments and you know, tested with thousands of participants. You
25:02
Speaker 3: have a lot of data to back up what you're
25:04
Speaker 3: testifying to in court. But tell me, have you ever
25:07
Speaker 3: heard of witness testifying in court or read their testimony
25:11
Speaker 3: and it kind of made you think, well, this isn't
25:13
Speaker 3: science at all. They're actually twisting this so much that
25:17
Speaker 3: it's more like junk science.
25:20
Speaker 2: I guess what I've seen happen in some cases, and
25:24
Speaker 2: this bothers me where I think opposing experts are introducing
25:30
Speaker 2: junk science. It's about trauma. They want to introduce to
25:36
Speaker 2: science that basically says traumatic memories are completely different. Traumatic memories,
25:43
Speaker 2: you know, are stored in the body. Traumatic memories can
25:47
Speaker 2: be relied on traumatic memories that kind of don't have
25:51
Speaker 2: these same problems. In fact, traumatic memories operate under similar
25:56
Speaker 2: in similar ways. They fade over time, they can be
26:01
Speaker 2: influenced by post event information. They are just lots of
26:06
Speaker 2: features of memory that are true, whether you're trying to
26:10
Speaker 2: remember something that's upsetting or whether you're trying to remember
26:13
Speaker 2: something that is a little bit more neutral and less emotional.
26:19
Speaker 2: You see this in the movies all the time. They're
26:21
Speaker 2: saying something like I was so frightened when this happened.
26:25
Speaker 2: I'll never forget that face as long as I live.
26:28
Speaker 2: That's an expression of the belief that this traumatic memory
26:33
Speaker 2: is sort of imprinted in the brain and is reliably
26:37
Speaker 2: and solidly there and you just need to read it out.
26:40
Speaker 2: And that is not the way things work with memory
26:45
Speaker 2: in general, or even traumatic memories.
26:49
Speaker 3: So tell us more about that, because I do think
26:52
Speaker 3: that when we hear about someone who has been raped
26:56
Speaker 3: or there's been a violent attack, are in instinct is
27:01
Speaker 3: that we should believe them no matter what, right, like,
27:04
Speaker 3: why would somebody make this up? So how do we
27:08
Speaker 3: reconcile the desire to believe a victim or the natural
27:14
Speaker 3: tendency to believe a victim with the knowledge that memories
27:18
Speaker 3: just aren't the most reliable form of evidence.
27:22
Speaker 2: I think the way we reconcile all this is that
27:26
Speaker 2: when there is somebody with an accusation, we certainly listen
27:30
Speaker 2: to it and examine it. And we don't want to
27:35
Speaker 2: uncritically accept every accusation, no matter how dubious, And we
27:40
Speaker 2: don't want to routinely reject an accusation just because we
27:45
Speaker 2: don't like how it sounds. So I do think there
27:49
Speaker 2: is a way to reconcile these two seemingly conflictual driving forces.
27:56
Speaker 2: But I don't think we forego our democratic PRIs and
28:01
Speaker 2: and forget about the fact that that we're proud to
28:06
Speaker 2: have a label system that respects the rights of the
28:11
Speaker 2: accused to have a defense.
28:14
Speaker 3: Yeah. I mean it's a tough dilemma, right, because I've
28:18
Speaker 3: had that instance just last week where you know, I
28:23
Speaker 3: am defending someone who I believe to be innocent, and
28:27
Speaker 3: you know I when when people hear about the case,
28:30
Speaker 3: or you tell them about the case, you know at
28:32
Speaker 3: least what's public knowledge. You know, their reaction is, well,
28:36
Speaker 3: why would somebody make up, you know, a accusation of
28:41
Speaker 3: sexual assault for instance. But the reality is is that
28:44
Speaker 3: they may not be consciously making it up. It may
28:47
Speaker 3: not be a conscious lie. It may just be that
28:50
Speaker 3: their perception and there what they think is their reliable
28:54
Speaker 3: memory is just not correct. Now, look, I have my
28:58
Speaker 3: own ideas, and the Innocence Project, as you know, has
29:02
Speaker 3: done a ton of policy work around this and trying
29:05
Speaker 3: to get reform achieved in law enforcement across the country
29:11
Speaker 3: and the way they go about instituting lineups and eyewitness identifications.
29:19
Speaker 3: But you tell tell me what you think. What do
29:23
Speaker 3: you think is a way that we can reform the
29:25
Speaker 3: system so that eyewitness identification would be more accurate.
29:29
Speaker 2: First of all, one thing that is important when law
29:33
Speaker 2: enforcement is conducting some kind of test, whether it's with
29:38
Speaker 2: photographs or whether it's with a live lineup, how do
29:41
Speaker 2: you conduct the test? What instruction do you give to
29:45
Speaker 2: the witness who conducts the test? Who are the fillers?
29:50
Speaker 2: The people who are put in the set of photos
29:52
Speaker 2: are put in the lineup along with your suspect. Each
29:58
Speaker 2: of these issues is important, and there are best practices
30:02
Speaker 2: that have been devised by scientists and very thoughtful people
30:07
Speaker 2: in the legal field about what those best practices should be.
30:12
Speaker 2: So best practice, the person conducting the test should not
30:15
Speaker 2: know who the suspect is. That's one of the most
30:18
Speaker 2: important things that In other words, the person conducting the test.
30:23
Speaker 2: It should be what's called a double blind test. The
30:27
Speaker 2: witness doesn't know who the suspect is and the person
30:30
Speaker 2: conducting the test doesn't know who the suspect is. And
30:33
Speaker 2: why that's important is because that means that the person
30:38
Speaker 2: conducting the test cannot inadvertently queue the witness as to
30:43
Speaker 2: who to pick, and the investigator cannot give feedback to
30:48
Speaker 2: the witness, cannot say, good job, that's our suspect, that's
30:54
Speaker 2: who we think did it. Another witness pick that same person,
31:00
Speaker 2: and a feedback artificially inflates the confidence of the witness
31:05
Speaker 2: and makes them a more powerful witness at the time
31:09
Speaker 2: of the trial, more impervious to cross examination. It's not
31:13
Speaker 2: a fair situation. So blind testing is one simple reform
31:19
Speaker 2: that's been suggested. How about the instruction you give to
31:22
Speaker 2: the witness. It's very important to have an unbiased instruction
31:27
Speaker 2: to say to the witness, you know, the person may
31:30
Speaker 2: or may not be in this lineup. It's just as
31:34
Speaker 2: important to exonerate the innocent as to find the guilty person.
31:38
Speaker 2: You're trying to take pressure off of the witness, take
31:42
Speaker 2: the pressure off so they don't feel they've got to
31:45
Speaker 2: pick someone anyone in order to solve the case. So
31:49
Speaker 2: that's why that instruction is important. Then there are other
31:52
Speaker 2: issues like who you put into the lineup? What should
31:55
Speaker 2: the fillers look like? Do they just resemble the suspect? No,
32:00
Speaker 2: they should also resemble the description that the witness gave.
32:06
Speaker 2: So if the witness said, you know a skinny guy
32:10
Speaker 2: with medium length hair, you want basically skinny people with
32:15
Speaker 2: medium length hair fitting the description, not just fitting the
32:20
Speaker 2: characteristics of the suspect.
32:23
Speaker 3: What is the biggest takeaway that you think our listeners
32:27
Speaker 3: should have from today's episode.
32:31
Speaker 2: Just because somebody tells you something and they say it
32:34
Speaker 2: with a lot of detail, and they say it with
32:37
Speaker 2: confidence and they even show emotion when they tell you,
32:40
Speaker 2: it doesn't mean it really happened. It doesn't mean it
32:44
Speaker 2: really happened exactly that way, you need independent corroboration to
32:50
Speaker 2: know whether you're dealing with an authentic memory or one
32:55
Speaker 2: that is a product of some other process imagine suggestion,
33:02
Speaker 2: misinterpreting dreams, or some other non authentic process.
33:11
Speaker 3: We always try to end each episode with a call
33:13
Speaker 3: to action. So I've been thinking about the lessons from
33:16
Speaker 3: today's interview with Elizabeth and just how interesting, informative and
33:22
Speaker 3: really eye opening it's been when someone's freedom hangs in
33:26
Speaker 3: the balance. We should leave open the possibility that when
33:30
Speaker 3: someone takes a witness stand and claims to have watched
33:33
Speaker 3: a crime unfold or says they are sure they saw
33:36
Speaker 3: the defendant leaving the scene of a crime, they may
33:39
Speaker 3: not be accurately conveying what happened, and not because they're
33:43
Speaker 3: intentionally lying or even shading the truth, but their memory
33:47
Speaker 3: may have been influenced in some way, so considered the
33:51
Speaker 3: surrounding circumstances, whether they were fed information, if there was
33:56
Speaker 3: a suggestion about who may have committed the crime by
33:59
Speaker 3: a member of law enforce smith, if the methods used
34:02
Speaker 3: to quote unquote identify a perpetrator were influenced in a
34:06
Speaker 3: way that made the accused stand out, and maybe it's
34:09
Speaker 3: not the most reassuring thing that in an error. When
34:12
Speaker 3: it seems that misinformation is rather popular and it's sometimes
34:17
Speaker 3: difficult to know what the truth actually is. Here is
34:20
Speaker 3: yet another reason to doubt our perception of reality. But
34:23
Speaker 3: remember your willingness to remain open to all credible possibilities
34:29
Speaker 3: may in fact prevent the next wrongful conviction. Next week,
34:40
Speaker 3: on our final episode of the season, we'll explore how
34:44
Speaker 3: what's known as shaken baby syndrome has been used to
34:48
Speaker 3: falsely implicate people in crimes they did not commit. We'll
34:52
Speaker 3: discuss this with executive director of the Center for Integrity
34:55
Speaker 3: and Forensic Sciences, Kate Judson. Wrongful Conviction Junk Science is
35:01
Speaker 3: a production of Lava for Good Podcasts and association with
35:05
Speaker 3: Signal Company Number One. Thanks to our executive producer Jason
35:08
Speaker 3: Flamm and the team at Signal Company Number One executive
35:12
Speaker 3: producer Kevin Wardis and senior producers Ker Kornhaber and Britz Spangler.
35:17
Speaker 3: Our music was composed by Jay Ralph. You can follow
35:20
Speaker 3: me on Instagram at dubin Josh, follow the Wrongful Conviction
35:25
Speaker 3: podcast on Facebook and on Instagram at Wrongful Conviction, and
35:29
Speaker 3: on Twitter at wrong conviction,