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How Eyewitness Testimony Works(?) · Stuff You Should Know

0:00
Speaker 1: Hey, everybody, it's Josh and Chuck and we're coming to
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Speaker 1: y s K live dot com. Welcome to Stuff you
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Speaker 1: should Know, a production of My Heart Radios How Stuff Works. Hey,
1:01
Speaker 1: and welcome to the podcast. I'm Josh Clark and there's
1:04
Speaker 1: Charles W Chuck Bryant, and there's Jerry over there, and
1:08
Speaker 1: this is stuff you should know, the Continuing Courtroom Drama edition. Yeah,
1:15
Speaker 1: this one. I think if you take our podcast on
1:19
Speaker 1: memory and our podcasts on police lineups and they made love, Yeah,
1:26
Speaker 1: then they would have this baby. I just came a
1:29
Speaker 1: little aroused. Chuck can tell. Yeah, this is uh. I
1:35
Speaker 1: guess two thousand eleven was the Memory one, so that's
1:37
Speaker 1: been a while. Yeah. Also you could sprinkle in a
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Speaker 1: little photographic memory. Maybe that one was just watching. Sure, Okay, yeah,
1:49
Speaker 1: I know. Hey, Jerry, how are you? That's right? Good,
1:54
Speaker 1: good answer. So, Chuck, Yes, have you ever been wrongfully
2:00
Speaker 1: convicted of a crime based on eyewitness testimony? Not convicted,
2:06
Speaker 1: but you have been indicted on it a crime? Not indicted.
2:10
Speaker 1: You have been accused of a crime. I've been accused
2:14
Speaker 1: of crimes. Really, I think you should dish about that.
2:19
Speaker 1: You know it, crimes against humanity. Okay, I'm gonna take
2:23
Speaker 1: all that as a no, you never have That's great, um.
2:26
Speaker 1: But it turns out there are plenty of people hundreds
2:32
Speaker 1: so far in the US alone, who have been found
2:35
Speaker 1: to have been wrongfully convicted of crimes. Big crimes, I
2:40
Speaker 1: mean crimes that have put them on death row, um
2:45
Speaker 1: based on eyewitness testimony. And in the last few decades
2:49
Speaker 1: it's become really apparent that eyewitness testimony is is really
2:53
Speaker 1: not great. I mean we've known it for a long time,
2:55
Speaker 1: but thanks to DNA evidence coming along, we can now
2:59
Speaker 1: go back and say, um, yeah, this is this person
3:02
Speaker 1: was innocent. Actually, yeah, you want to hear something, A
3:06
Speaker 1: little story. So the UH we worked with a locations person,
3:14
Speaker 1: actually two people, it's a couple on some of the
3:17
Speaker 1: stuff you should know stuff back in the day. I
3:18
Speaker 1: think some of the shorts and UH in locations and
3:23
Speaker 1: I'm not gonna say their names or anything to protect them,
3:26
Speaker 1: but they were riding their bikes and we're hit and
3:29
Speaker 1: run last week and um, she's fine now, but she
3:33
Speaker 1: was in the hospital. Was it was not great? And
3:35
Speaker 1: they have I've been following this on social media. They
3:39
Speaker 1: have video from you know, like everyone has cameras now,
3:43
Speaker 1: businesses and homes and stuff. They have video of the incident.
3:47
Speaker 1: They have the the car's license plate as clear as day,
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Speaker 1: the car as clear as day. The police have all
3:53
Speaker 1: this stuff, and the police are like, nothing we can
3:55
Speaker 1: do about it unless you have an eye witness that
3:57
Speaker 1: can like say who the driver was? What the same
4:01
Speaker 1: thing that happened to me in l A when you
4:03
Speaker 1: know I told that story back, Uh in one of
4:05
Speaker 1: our shows when I got hit and run and I
4:08
Speaker 1: couldn't identify this young woman in a in a lineup card.
4:12
Speaker 1: Oh yeah, they're like, sorry, she said she didn't do it.
4:15
Speaker 1: I'm like, that's all you gotta do is they didn't
4:17
Speaker 1: do it, But the same thing is happening to them.
4:19
Speaker 1: They have You wouldn't believe the clarity of the videos
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Speaker 1: that show this car right hitting them and leaving and uh,
4:27
Speaker 1: they're like, nothing we can do about it. Man, that
4:30
Speaker 1: is crazy. So that's like a pretty good example of
4:33
Speaker 1: the law being slow to catch up to the current
4:36
Speaker 1: state of I guess the world basically. Yeah, I mean
4:39
Speaker 1: they're they're not They're working the case and they're trying
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Speaker 1: to find out who did it, but they can't simply
4:46
Speaker 1: go to the person's house who owns that car and
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Speaker 1: like arrest somebody. I guess in a way though that
4:52
Speaker 1: I mean, it sounds stupid and and dumb, but at
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Speaker 1: the same time it is kind of reassuring, especially with
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Speaker 1: the rise of deep fakes, which we've talked to out too.
5:01
Speaker 1: You can't just fabricate a video, especially convincing one, and
5:05
Speaker 1: be like, go arrest this person, I guess. So. My
5:08
Speaker 1: thought though, is like, go bring in the person who
5:11
Speaker 1: owns the car and you will probably very likely find
5:14
Speaker 1: out who was driving it. Sure if it wasn't them, Yeah,
5:19
Speaker 1: especially if you are are really generous with the rubber hose,
5:24
Speaker 1: you know what I mean, and the d louson I've
5:28
Speaker 1: met more of the beating with the rubber hose. No,
5:32
Speaker 1: I know what you mean. Okay, you took it a
5:34
Speaker 1: different direction. A Rambo in First Blood? What did they
5:39
Speaker 1: de loust Rambo? Yeah, they d loused him and then
5:41
Speaker 1: hit him with the fire hose. Okay, huh. But all
5:48
Speaker 1: this to say, I witness testimony like is what's needed
5:53
Speaker 1: in many cases to prove guilt. But it's so unreliable, right,
6:01
Speaker 1: it's like a joke almost. It's well, it's the gold
6:03
Speaker 1: standard in the American justice system, and I would suspect
6:07
Speaker 1: just about every justice system that if somebody comes into
6:10
Speaker 1: a court and points at them, at the suspect or
6:14
Speaker 1: the defendant and says, I saw them kill that person.
6:18
Speaker 1: I saw them hit that couple with their car and
6:20
Speaker 1: drive off. I saw them. Other people who make up
6:24
Speaker 1: juries will be like, Wow, how are you gonna argue
6:28
Speaker 1: with that? You can't this person swearing under oath that
6:31
Speaker 1: they saw them do it. Um, they don't strike me
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Speaker 1: as a liar. They don't seem to have anything to
6:35
Speaker 1: gain from lying about this. So I'm gonna go ahead
6:37
Speaker 1: and believe this this person and convict. But like we were,
6:42
Speaker 1: we've kind of been toying with a little bit and saying,
6:45
Speaker 1: like I witness testimony isn't great. Um, you don't have
6:50
Speaker 1: to have some sort of vested interest in sending someone
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Speaker 1: to prison. You don't have to be outright lying to
6:56
Speaker 1: basically send someone to jail who's actually innocent based done
7:00
Speaker 1: your own testimony. And while you're doing this, while you're
7:02
Speaker 1: testifying a court, you might actually fully believe what you're saying,
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Speaker 1: even though what you're saying is fabricated and actually you
7:11
Speaker 1: don't really recognize the person that you're saying you saw
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Speaker 1: commit this crime. Yeah, and a jury is way more
7:17
Speaker 1: likely to uh convict if you're like super super sure
7:22
Speaker 1: and you're like, oh no, that was the person. I
7:25
Speaker 1: am positive. But as we will learn as we impact
7:29
Speaker 1: this topic, um, that that confidence in court is not
7:35
Speaker 1: there from the beginning necessarily. Yeah, yeah, that's true. But
7:39
Speaker 1: if you think that confidence sells it, if you have
7:43
Speaker 1: a cocky witness, they'll just kill the defendant on the spot.
7:48
Speaker 1: So like, are you one sure? And they go what
7:51
Speaker 1: did I just say? Exactly? That kind of witness will
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Speaker 1: send you to the the electric chair or the lethal
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Speaker 1: injection needle everyday the week. They're called do I stutter witnesses?
8:04
Speaker 1: Oh all right, let's get into this. We've been dancing
8:08
Speaker 1: around it quite a bit. It's been a beautiful dance,
8:10
Speaker 1: but let's get into it. Okay, Yeah, I guess this
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Speaker 1: nineteen fifty nine paper was kind of says it all. Uh, physiologist,
8:18
Speaker 1: I'm sorry. A psychologist an attorney named Robert Redmount said
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Speaker 1: it has been suggested that the presumption is probably warranted
8:26
Speaker 1: to the effect that a random person give an accurate,
8:29
Speaker 1: original perception well in the ordinary course of events, reflect
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Speaker 1: a memory competent to serve most of the purposes for
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Speaker 1: which it is demanded. Which that's sort of a long
8:38
Speaker 1: way of saying memory is good enough, right. Yeah. Basically
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Speaker 1: that that the average person walking around can serve as
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Speaker 1: a reliable eye witness to a crime basically, And what
8:51
Speaker 1: what this nineteen fifty nine brief is basically saying is
8:55
Speaker 1: like this is this is the state of affairs in
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Speaker 1: the American justice them that if you say you saw something,
9:02
Speaker 1: and you say you're pretty sure that what you saw,
9:04
Speaker 1: what you're saying, or what you think you saw is accurate,
9:07
Speaker 1: the court system can rely on you enough to convict somebody. Yeah,
9:12
Speaker 1: but almost to the point where it's like, can we
9:14
Speaker 1: all just get on the same page here and agree
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Speaker 1: that we'll just believe someone when they say they're they're
9:19
Speaker 1: really sure. Yeah, I mean it's smacks of that too,
9:22
Speaker 1: for sure. It definitely does the like I guess the
9:24
Speaker 1: guy was just trying to shore up any opposition to it,
9:27
Speaker 1: and I mean that was um but long before that,
9:33
Speaker 1: there were chinks in the armor of eyewitness testimony and
9:37
Speaker 1: just how reliable it was. Um So, I mean people
9:42
Speaker 1: have been using eyewitness testimony for basically ever. It's probably
9:46
Speaker 1: the oldest type of testimony or that there is in
9:49
Speaker 1: any kind of court or proceedings or anything like that.
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Speaker 1: But starting in the early twentieth century, it as psychology
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Speaker 1: kind of developed One of the first things that psychology
10:01
Speaker 1: took on was the reliability of memory and eye witness testimony,
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Speaker 1: and one of the first people to take it on
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Speaker 1: was a psychologist named Hugo Munsterberg. I got the um
10:14
Speaker 1: lau correct. Thanks man. He wrote a book called On
10:18
Speaker 1: the Witness stand In and he was he's known still
10:23
Speaker 1: today as the father of applied psychology. He was a
10:25
Speaker 1: psychologist who said, hey, he was how psychology can help
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Speaker 1: you in your day to day life, especially for day
10:31
Speaker 1: to day life, is that you're being convicted of a
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Speaker 1: crime based on eyewitness testimony and um. He basically showed
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Speaker 1: through a lot of experiments and exercises when he was
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Speaker 1: a lecturer at Harvard that memory was definitely not um Essentially,
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Speaker 1: just like a film strip or a videotape or for
10:52
Speaker 1: today's kids in MP four file, you know that that
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Speaker 1: we we don't just sit there and record the events
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Speaker 1: going on around us in the world at all times
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Speaker 1: and can go back and replay those events in our
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Speaker 1: lives and it's an accurate rendering of what we experience.
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Speaker 1: That's just not the case. Well, yeah, and this is
11:12
Speaker 1: uh with with students where they knew that they were
11:15
Speaker 1: doing memory tests and quizzes, and they knew that they
11:19
Speaker 1: were there to do that and had to focus on
11:21
Speaker 1: this stuff and uh, you really need to concentrate and
11:24
Speaker 1: remember what I'm about to show you, maybe have a
11:27
Speaker 1: sandwich beforehand. Yeah, And they were still inaccurate and really
11:31
Speaker 1: demonstrated what we all now know is the fact that
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Speaker 1: human memory is very fallible. Like, forget about just happening
11:40
Speaker 1: down the street. You got a million things on your mind.
11:42
Speaker 1: You're right in the middle of texting someone and you
11:44
Speaker 1: look up and you see a crime happen like that
11:47
Speaker 1: has Uh. After reading this stuff, it seems like very
11:51
Speaker 1: little probability of you getting that stuff right right. Yeah.
11:56
Speaker 1: I saw somewhere that smartphones in general are Um, they're
11:59
Speaker 1: good that you know, they can help capture video of
12:03
Speaker 1: a crime or a photo of a crime. But at
12:05
Speaker 1: the same time, they really make a lot of witnesses
12:08
Speaker 1: unreliable because everyone is so distracted by their smartphones that
12:11
Speaker 1: they don't really see what's going on or don't you know,
12:14
Speaker 1: they might have otherwise been a really good witness, but
12:17
Speaker 1: they were kind of glued to their phone at the time.
12:19
Speaker 1: I mean, you can that's true without even uh, I
12:22
Speaker 1: mean that's true about everything when it comes to smartphones.
12:25
Speaker 1: I wasn't paying attention. I was looking at the phone
12:27
Speaker 1: or the people that. You know, if I can complain
12:30
Speaker 1: about concerts again for a moment, go ahead, man. The
12:33
Speaker 1: people that videotape entire songs are usually looking at it
12:38
Speaker 1: through their phone, and that's the worst possible way to
12:41
Speaker 1: experience alive musical moment. It really is, especially when you
12:46
Speaker 1: consider that they will probably never go back and watch
12:50
Speaker 1: that video. You know, justin my buddy, uh, my tall
12:55
Speaker 1: British friend, he he yells from behind them so you
12:58
Speaker 1: can hear it on the video. You're never gonna watch
13:01
Speaker 1: it as loud as he can, which is great. He's
13:05
Speaker 1: probably right like eight percent of the time, I would say,
13:08
Speaker 1: But I would like to see the next day where
13:10
Speaker 1: some of those people watch it and they hear justin
13:12
Speaker 1: in the background, Sam, You're never going to watch it.
13:14
Speaker 1: They're probably like, what is that guy talking about? Or
13:16
Speaker 1: he's like the person watching is like, I showed that
13:18
Speaker 1: guy right, so um Hugo Munsterberg. He wrote this thing
13:23
Speaker 1: on the witness stand basically saying we should not just
13:26
Speaker 1: you know, take everyone's word for it. When an eyewitness
13:29
Speaker 1: comes forward in a criminal proceeding like there's problems with memory,
13:33
Speaker 1: and I've just demonstrated it. But his writings were largely
13:38
Speaker 1: overlooked because during World War One he was from Germany,
13:42
Speaker 1: but he became a German American. Um he wandered around
13:47
Speaker 1: vocally supporting Germany during the First World War, which is
13:50
Speaker 1: not something you want to do back then. It's not
13:52
Speaker 1: a good way to get your book out there. No,
13:56
Speaker 1: so he was he was basically just ignored for many,
13:59
Speaker 1: many years, even though he was one of the first
14:01
Speaker 1: psychologists to take up this mantle. And it wasn't until
14:04
Speaker 1: about the mid seventies that psychology again took this up.
14:09
Speaker 1: And there were two psychologists in particular, a guy named
14:12
Speaker 1: Robert buck Out who basically was was the first to
14:15
Speaker 1: be like memory is not a videotape is one way
14:18
Speaker 1: to put his research. And then another um psychologists a
14:22
Speaker 1: very famous psychologist named Elizabeth Loftus in the later seventies
14:26
Speaker 1: a few years after buck Out, Um was really the
14:29
Speaker 1: one whose work kind of captured the popular imagination and
14:33
Speaker 1: made us all realize that we're just total frauds when
14:36
Speaker 1: we're recalling a memory. Well, yeah, and with the advent
14:40
Speaker 1: of DNA evidence, and when you know, all it took
14:45
Speaker 1: was a building up of cases being overturned because of
14:49
Speaker 1: DNA evidence where eyewitness testimony that was positive was directly overturned.
14:55
Speaker 1: You get enough of those mounting up, and then all
14:58
Speaker 1: of a sudden, the United States has a p problem
15:00
Speaker 1: on their hands and they have to say, well, maybe
15:03
Speaker 1: we really need to look into this whole thing about
15:06
Speaker 1: memory and I witness testimony not being super reliable. Right,
15:09
Speaker 1: let's take the next thirty years to mull it over. Basically, sure, so, um, yeah,
15:14
Speaker 1: that was the the Innocence Project in particular. There have
15:17
Speaker 1: been people working to exonerate people based on faulty evidence,
15:21
Speaker 1: which really got a punch in the arm or shot
15:23
Speaker 1: in the arm after DNA evidence, like you were saying,
15:26
Speaker 1: But the Innocence Project in particular, um was started in
15:30
Speaker 1: and they've got like I think three hundred and sixty
15:33
Speaker 1: five exonerations under their belt, one for each day of
15:37
Speaker 1: the year, exactly, do it on the on the daily.
15:40
Speaker 1: We did a we did a show on that too.
15:42
Speaker 1: So yeah, you remembering in we talked to Paula is
15:46
Speaker 1: On That's right, So I can tell by that sigh,
15:52
Speaker 1: I think you're ready for a message break, you want
15:54
Speaker 1: to take one. Yeah, I'm just gonna google some some
15:57
Speaker 1: Polosan trying to remember who she was. We'll be back
16:02
Speaker 1: right after this. Alright, So, Chuck, we've been talking a
16:32
Speaker 1: lot of smack about the human memory. Let's back it
16:35
Speaker 1: up with some some facts and figures and stuffy. Yeah,
16:39
Speaker 1: I mean there have been, like you said, the past
16:41
Speaker 1: thirty years is when the United States started doing I
16:45
Speaker 1: just said United He started doing more and more studies
16:48
Speaker 1: on on the human memory and how accurate it is,
16:51
Speaker 1: and it is really exposed the flaws and biases, um,
16:56
Speaker 1: and it's really not even I mean, it is memory,
16:58
Speaker 1: but it's also perception and what we perceive is going on,
17:02
Speaker 1: and there are a lot of like we don't all
17:06
Speaker 1: agree on what perception even means, and there are a
17:10
Speaker 1: lot of different theories about how visual perception works. Yeah,
17:14
Speaker 1: there's like a two fold issue with memory. There's the
17:17
Speaker 1: formation of memory and then there's the recall. Right, so
17:20
Speaker 1: with the formation of memory, it's like, yeah, if you
17:22
Speaker 1: can't agree on what constitutes reality, you know, it makes
17:26
Speaker 1: it really tough to perceive reality and like a standard, uniform,
17:30
Speaker 1: objective way. But you can form a wrong memory that's
17:33
Speaker 1: like that should stop everyone cold in their tracks, right exactly.
17:37
Speaker 1: And there's the the this is there's basically two ways
17:40
Speaker 1: of looking at um at at how we perceive reality.
17:46
Speaker 1: And it is either reality exists in some way that
17:49
Speaker 1: we don't perceive and we kind of paint this picture
17:52
Speaker 1: that we think of as reality but that's not actually
17:54
Speaker 1: really reality, or reality is reality but we just kind
17:59
Speaker 1: of um perceive it piecemeal um in in order to
18:05
Speaker 1: save energy, save time, save storage space, whatever. But the
18:10
Speaker 1: upshot of both of these, and I really want to
18:12
Speaker 1: do in an entire episode on the nature of reality someday, okay,
18:17
Speaker 1: but the upshot of these theories on what reality isn't
18:20
Speaker 1: how we perceive them is that we basically take what
18:24
Speaker 1: we need from the environment, from whatever scene we're observing, whatever,
18:29
Speaker 1: and then we kind of fill in the blanks to
18:31
Speaker 1: create this complete picture. And in doing so, if if
18:37
Speaker 1: we're just kind of walking through a meadow or something
18:40
Speaker 1: like that, enjoying the day, that doesn't really matter, right.
18:43
Speaker 1: We can kind of recall what that butterfly that flew
18:46
Speaker 1: by looked like, what its colors were, what the trees
18:48
Speaker 1: looked like, but if we really dig in, did we
18:51
Speaker 1: actually look at the trees that kind of provided the
18:55
Speaker 1: backdrop of the scene or is it just kind of,
18:58
Speaker 1: uh a conception of what trees in general look like
19:02
Speaker 1: in that situation. Um, that our minds filled in. And
19:06
Speaker 1: when people started like thinking about this stuff, not just psychologist,
19:10
Speaker 1: but neurologists, philosophers, all these a lot of different people
19:13
Speaker 1: trying to figure out, you know, how we go through
19:16
Speaker 1: the life and reality and perceive the world. Um, it
19:19
Speaker 1: became really apparent that we do a lot of shorthand
19:23
Speaker 1: construction as we're kind of moving through life, and when
19:27
Speaker 1: we're walking through a meadow, not that important. When we're
19:30
Speaker 1: convicting a person of um, robbery and murder, then it
19:34
Speaker 1: does become important. And it is an issue that we
19:37
Speaker 1: just kind of fill in the blanks to create a
19:39
Speaker 1: whole picture that didn't necessarily happen. Yeah. That I don't
19:43
Speaker 1: know if anyone listening has ever seen the hollow mask illusion. Um.
19:47
Speaker 1: That has to do with gestalt theory basically that our
19:51
Speaker 1: perceptions are based on perceptual hypotheses. So like that's us
19:56
Speaker 1: making these educated guests educated. Yeah, educated guests is about Um,
20:02
Speaker 1: the sensory information that our eyeballs in our ear holes.
20:05
Speaker 1: And we should point out that I witness testimony can
20:08
Speaker 1: mean audio like thing you overheard as well. UM, I
20:12
Speaker 1: don't know how well other senses of performed in court.
20:16
Speaker 1: I was thinking about that, like, I guess, you know,
20:18
Speaker 1: did you smell a chemical smell or something like that? That
20:21
Speaker 1: That would be one, but I mean, I don't know
20:24
Speaker 1: what else you would like. Did you did you feel
20:27
Speaker 1: the murderer's touch taste? I don't know, did you lick
20:31
Speaker 1: the guy who was robbing the gas station? But if
20:35
Speaker 1: you look at the the great example of gestalt theory
20:38
Speaker 1: and that UM perceptual hypotheses is the hollow mass. So
20:42
Speaker 1: if you go online, there's one UM very famous one
20:45
Speaker 1: of Albert Einstein, and it's basically, someone will show you,
20:49
Speaker 1: UM what looks like UM, a mask of Albert Einstein's face,
20:54
Speaker 1: and then they start to turn it around, and about
21:00
Speaker 1: halfway through you realize that you were looking at the
21:02
Speaker 1: inside of that mask and not the outside of that mask.
21:06
Speaker 1: And it's painted, of course, but it's still uh concave,
21:11
Speaker 1: so it shouldn't look convex, but it yet it does.
21:14
Speaker 1: And it's a mine trick and it's really freaky. It is,
21:18
Speaker 1: but it also just kind of goes to show that
21:20
Speaker 1: our brains leap to conclusions basically. Yeah. Absolutely. Another thing
21:25
Speaker 1: is that the whole Darwinnian approach is basically, if you're
21:29
Speaker 1: in a in a dangerous situation, um, your brain is
21:33
Speaker 1: going to quickly decide what's most important to pay attention
21:37
Speaker 1: to in that scene. UM, And that that will of
21:40
Speaker 1: course skew reality depending on what's going on. Plus also
21:45
Speaker 1: so so so that's point one. Our brains fill in
21:48
Speaker 1: the blanks probably more than we realize to create our
21:51
Speaker 1: idea of reality and memory. Right, yes, and even when
21:56
Speaker 1: we're actually actively taking in information the them just how good,
22:03
Speaker 1: say like our eyesight is or our hearing is or exactly.
22:09
Speaker 1: And that's one thing that that defense attorneys, in particular
22:12
Speaker 1: will Um will try to attack is things like that,
22:15
Speaker 1: like you know, do you wear glasses or contacts? Have
22:18
Speaker 1: you ever had lay sick? Was it raining out? Was
22:20
Speaker 1: at nighttime? You know how far away were you? Street
22:24
Speaker 1: light was under repair? We have records exactly in the
22:27
Speaker 1: whole courtroom goes, yeah, it's the big moment, and Perry
22:31
Speaker 1: Mason shoots a duck. Perry Mason farts in court. I
22:37
Speaker 1: didn't say that. I said he shoots a duck, all right.
22:42
Speaker 1: It was his his thing at least at first and
22:44
Speaker 1: the early episodes, and then the producers were like, this
22:47
Speaker 1: didn't go a name where we're gonna drop this as
22:48
Speaker 1: this thing your honor? I object, right, that's right. That
22:54
Speaker 1: was from episode three. Oh boy. Um, so they're there
23:00
Speaker 1: has to be a standard here though, Um when it
23:02
Speaker 1: comes to court and like how well people see? I
23:06
Speaker 1: mean it can't. I mean it is case by case
23:09
Speaker 1: and that every case is its own unique thing in court,
23:12
Speaker 1: but there has to be some sort of standard as
23:14
Speaker 1: far as like how well does somebody with vision see?
23:18
Speaker 1: For instance, And there's a guy named Jeffrey Loftus, a
23:22
Speaker 1: researcher from UH. I believe is that you dub dub,
23:27
Speaker 1: and he kind of developed this formula on vision over distance,
23:33
Speaker 1: which basically says, at ten feet you might not be
23:36
Speaker 1: able to see eyelashes on a person's face. It's two
23:41
Speaker 1: hundred feet you may not be able to see eyes,
23:44
Speaker 1: and at five feet you could see a person's head,
23:47
Speaker 1: but it's just a big blur. So like this could
23:50
Speaker 1: be uh, and is this the standard that they use
23:53
Speaker 1: in court. I think he's trying to to make it
23:56
Speaker 1: a standard, and I'm sure he gets called on as
23:58
Speaker 1: a professional witness and says all this, But I don't
24:01
Speaker 1: believe it's it's an actual um, like it's been judged
24:05
Speaker 1: to be like the standards, like they don't without a
24:07
Speaker 1: chart in court. No, but I think if you really
24:10
Speaker 1: wanted to get the point across, you could do worse
24:12
Speaker 1: than hiring Jeoffrey Loftus. Yeah, and I imagine don't they
24:16
Speaker 1: also do uh did they test these people? Um? I
24:22
Speaker 1: don't know. I think if you have a really good
24:24
Speaker 1: defense attorney, you could probably ask that a witness, if
24:27
Speaker 1: not go to an optometrist, at least have their um,
24:31
Speaker 1: their optometrist records subpoenaed. Or in the dramatic TV or
24:37
Speaker 1: film version, you see the your honor, if I may
24:41
Speaker 1: step to the rear of the courtroom, and you do
24:43
Speaker 1: that move and then you know, you hold up two
24:46
Speaker 1: fingers and you say how many fingers am I holding up?
24:49
Speaker 1: And then what in the Mr Brady cross is a
24:53
Speaker 1: briefcase and the guy with the nick brace on turns
24:56
Speaker 1: his head. What a chump that guy was? It was
24:59
Speaker 1: not committed, No, that's so great that you said that,
25:03
Speaker 1: because it was between that or a Perry Mason joke
25:05
Speaker 1: for me if I was going to swoop in. Okay,
25:08
Speaker 1: I don't know much Perry Mason. Did he fart in court? No,
25:11
Speaker 1: I just totally made that up. I don't know anything
25:14
Speaker 1: about him either. It is no, it was Raymond Burr.
25:17
Speaker 1: He was ironsides, he was both buddy. But I mean,
25:21
Speaker 1: if there was ever somebody that looked like he'd fart
25:23
Speaker 1: in court, it's Raymond Burr. You know, even like put together,
25:28
Speaker 1: um clean shaven Raymond Burr from Perry Mason. Yeah, he
25:32
Speaker 1: does look Cassie, doesn't he a little bit? So Okay,
25:36
Speaker 1: moving on, Chuck. There's also the problem um that researchers
25:41
Speaker 1: have found that we humans have a finite amount of attention, right,
25:47
Speaker 1: and if there's a bunch of stuff going on at once,
25:49
Speaker 1: or we have to pay attention to multiple things in
25:51
Speaker 1: quick succession, it's been found that there are a lot
25:54
Speaker 1: of um problems with that that that we don't really
25:57
Speaker 1: do real well with pace stuff coming at us, especially
26:02
Speaker 1: when we're stressed out or in a high stress situation. Yeah,
26:05
Speaker 1: it's like this stuff is really neat there's something called
26:07
Speaker 1: attentional blink, um, not intentional attentional And that's when, um, like,
26:13
Speaker 1: when you're just looking around at things anywhere you are,
26:17
Speaker 1: it feels like one big fluid thing where you're taking
26:19
Speaker 1: in everything, but that's not really happening. When you you know,
26:24
Speaker 1: if I'm looking at this coffee cup and then I
26:26
Speaker 1: look up at your face, there's something called attentional blink,
26:29
Speaker 1: which is a little blip less than a second where
26:33
Speaker 1: there is in um, I guess, just an interruption and input. Yeah,
26:39
Speaker 1: and your attention. Yeah, you know, you're you're shifting from
26:42
Speaker 1: one thing to the other, and it's not a fluid motion.
26:45
Speaker 1: It's kind of like a hiccup. But you don't notice this, No,
26:48
Speaker 1: you don't. It all blends seamlessly because your brain is
26:51
Speaker 1: filling in these little gaps. But during that period, if
26:54
Speaker 1: something really vital happened, and that'say half of a second span,
26:58
Speaker 1: you might not notice it. And because we've already seen
27:01
Speaker 1: that our brains tend to fill in information to create
27:03
Speaker 1: a smooth picture of reality. That could be problematic for
27:06
Speaker 1: the person who you're saying you saw do something or
27:08
Speaker 1: didn't see the other. Thing about attentional blink too, is
27:12
Speaker 1: that it really kind of points out that if, um,
27:16
Speaker 1: if we are really focused on one thing, we might
27:19
Speaker 1: miss another, that our attention is is very selective. Basically, Yeah,
27:26
Speaker 1: um yeah, you know, if you're like into your smartphone,
27:29
Speaker 1: you're not paying attention to stuff going on around you. Um,
27:34
Speaker 1: even if like you're driving, like if you're driven up
27:36
Speaker 1: next to somebody and they're driving like thirty miles an
27:39
Speaker 1: hour under the speed limit, which supposedly is safe, but
27:42
Speaker 1: you know, they're on their phone and you honk at
27:45
Speaker 1: them and like flip them off and like throw a
27:47
Speaker 1: rock at their windshield that kind of thing, and they
27:50
Speaker 1: don't even look up. They don't there, No, they have
27:53
Speaker 1: no idea. That's kind of the same thing. But there's
27:56
Speaker 1: this really amazing video that I hadn't heard of. But
27:59
Speaker 1: these two magicians I know, Jared and John who are
28:03
Speaker 1: I hope are working on a podcast um about this
28:05
Speaker 1: kind of stuff. Um, they pointed it out. Did you
28:08
Speaker 1: go see that video that was linked in this article,
28:11
Speaker 1: which one the one that was created by Daniel Simmons
28:15
Speaker 1: and Christopher shabrists or Chebris where it's the ball passing video. Okay,
28:22
Speaker 1: so I don't want to give anything else out about
28:25
Speaker 1: it to everybody. Just go look up Daniel Simmons ball
28:31
Speaker 1: passing video and prepared to be amazed. But it really
28:35
Speaker 1: drives home like what the them, Just how focused we
28:39
Speaker 1: can become at the expense of other information. That's right, Um,
28:46
Speaker 1: what else? Chuck? Uh? Well, there's something called the psychological
28:50
Speaker 1: refractory period with the prp UM and that's when if
28:55
Speaker 1: two things, if two cognitive tasks, and this can include
28:59
Speaker 1: you know, you seeing things, uh, if they arrive really
29:02
Speaker 1: closely together, there's a bit of a lag time between
29:06
Speaker 1: when we process these two things, that first thing and
29:09
Speaker 1: then that second thing. So if these things are coming
29:12
Speaker 1: in quick succession, or they are very intense, or there
29:15
Speaker 1: are a lot of different stimuli, there is a little bottleneck,
29:19
Speaker 1: a processing bottle neck that can occur, and especially in
29:23
Speaker 1: a in a like a a scary experience like if
29:27
Speaker 1: someone sticks a gun in your face or something. The
29:30
Speaker 1: you know, the big example that you always hear is
29:32
Speaker 1: like what was the weapon? Was it a gun or
29:34
Speaker 1: a knife? And it's been kind of shown time again.
29:38
Speaker 1: If you're if you are, if someone comes and sticks
29:41
Speaker 1: a gun in your face, you're going to have your
29:44
Speaker 1: attention on the gun and more so than the face.
29:47
Speaker 1: M So you might not be able to recall what
29:50
Speaker 1: your perpetrator look like. Uh. You may have more information
29:54
Speaker 1: about the gun, which is a little helpful, but not
29:56
Speaker 1: as much as their face. Yeah. You know, I think
29:58
Speaker 1: I told you before that time that Umi got mugged. Um,
30:02
Speaker 1: she was not focused on the gun and did not
30:06
Speaker 1: know that the guy had had a gun on her
30:08
Speaker 1: and her friends. Um, when she was asked if there
30:11
Speaker 1: was a gun at the cops station, she's like, I
30:13
Speaker 1: actually don't know, Like she didn't process the gun and
30:17
Speaker 1: her friends were like, yeah, there was a gun. The
30:19
Speaker 1: guy had a gun, Um, which is I hadn't realized.
30:23
Speaker 1: Like I get that, you know, not processing something because
30:26
Speaker 1: of a stressful situation, but it's it's funny, that's like
30:29
Speaker 1: the opposite apparently of how it usually is. Yeah, and
30:32
Speaker 1: I think you can sort of train yourself. I mean,
30:37
Speaker 1: hopefully this kind of thing doesn't happen over and over again,
30:39
Speaker 1: and like to Umi or anyone else, but like I've
30:44
Speaker 1: sort of told myself, like, if anything ever happens, try
30:48
Speaker 1: and keep your wits about you and taking as much
30:51
Speaker 1: detail as you can and and like repeat it in
30:54
Speaker 1: your brain over and over. That's just good advice for
30:57
Speaker 1: like daily living. Sure, that's mindful in this, I think yeah,
31:03
Speaker 1: I told you before. I think it was the police
31:05
Speaker 1: lineups one that she was able to pick the guy
31:07
Speaker 1: out in the lineup, So maybe she was focused on
31:08
Speaker 1: the guy's face and was missing the gun rather than
31:11
Speaker 1: the opposite exactly, she was that a finger in your pocket, right,
31:17
Speaker 1: don't say the second part, So I'm not going to.
31:20
Speaker 1: I'm just gonna leave it up to the listeners, dirty
31:23
Speaker 1: dirty listeners minds. So, um, there's also another one for
31:28
Speaker 1: forming memories that has kind of confounded researchers for a while. Um,
31:34
Speaker 1: and it's called the own race bias or cross race effect. Yeah.
31:38
Speaker 1: We talked about this in police lineups, didn't we? I
31:40
Speaker 1: feel like we did, But I think it's worth going
31:42
Speaker 1: over one more time. So it basically is it says
31:45
Speaker 1: that if you are a witness, and you witness a
31:48
Speaker 1: crime that's that's carried out by somebody from another race
31:52
Speaker 1: or ethnic group other than yours, you're going to have
31:55
Speaker 1: a harder time recognizing that person, um than you will
32:00
Speaker 1: would if they were a member of your own race
32:02
Speaker 1: or ethnic group. And so the the it seems easy peasy, well,
32:07
Speaker 1: that you're just a racist and every everybody of another
32:10
Speaker 1: race looks alike to you. That's not the case. They
32:13
Speaker 1: found that people who score UM low on questionnaires about
32:17
Speaker 1: being prejudiced um also are subject to the cross race effect,
32:21
Speaker 1: and that it's across the board for everybody of any race.
32:25
Speaker 1: They're all equally subjected or they're equally um, what's the
32:31
Speaker 1: word victims of it? I guess yeah, miss uh, it's
32:36
Speaker 1: in there somewhere misidentified. Now, they're equally susceptible. Susceptible. We
32:41
Speaker 1: got there, we got there, chuck. Yeah, that's true. Uh,
32:45
Speaker 1: and that's really interesting, Like you could you could test
32:48
Speaker 1: out as the least prejudice person on the planet and
32:51
Speaker 1: still misidentify someone um from another race. Yeah. And they
32:55
Speaker 1: think that different races have different defining characteristics and that you,
33:00
Speaker 1: as a child and probably well into adulthood, are kind
33:04
Speaker 1: of trained to pick out the identifying characteristics of people
33:06
Speaker 1: of your own race UM, which doesn't necessarily apply to
33:10
Speaker 1: people of other races. And so people really are bad
33:13
Speaker 1: at distinguishing different members of different races, not because they're
33:18
Speaker 1: racist and everybody looks alike, but because they're looking for
33:20
Speaker 1: the wrong cues distinguishing cues. Yeah, and you know, sometimes
33:26
Speaker 1: people can look like other people. It's uh. In the
33:31
Speaker 1: famous cases section, I'm gonna go ahead and pick one
33:33
Speaker 1: out of there, very famous case of Ronald Cotton. Uh
33:38
Speaker 1: In he was identified as a perpetrator of a rape
33:42
Speaker 1: sentenced to life in prison. And uh, I went back
33:46
Speaker 1: and I looked at the person who eventually was found
33:49
Speaker 1: out to be the the he was exonerated Cotton was,
33:53
Speaker 1: but the real guy, Bobby Pool that saw side by
33:56
Speaker 1: side images. These guys look a lot alike. They look
33:59
Speaker 1: at a lot out of like, like their noses are different,
34:01
Speaker 1: but if you block out their nose, they're the lower
34:04
Speaker 1: half of their face and their eyes and forehead are
34:07
Speaker 1: really really similar. And I think that's just a case
34:10
Speaker 1: of really bad luck. It was really bad luck. It
34:14
Speaker 1: ultimately pan out to be really good luck. But I mean,
34:17
Speaker 1: the the victim, the eyewitness was the victim a woman
34:20
Speaker 1: named um Jennifer Thompson. And during the rape she did
34:25
Speaker 1: she took your advice and like, kept her wits about
34:27
Speaker 1: her as much as possible and took the opportunity to
34:30
Speaker 1: study the guy's face. But because Pool and Cotton looked
34:35
Speaker 1: so much alike, Um, she there was, there was. It
34:39
Speaker 1: was a case of mistaken identity of a witness who
34:42
Speaker 1: actually is we'll see. Was kind of unsure at first,
34:44
Speaker 1: but became more and more confident, which is a big problem. Um.
34:48
Speaker 1: But when Cotton was exonerated, Um, Jennifer Thompson and Ronald
34:52
Speaker 1: Cotton went on to write a book about the whole
34:54
Speaker 1: thing together and their friends. They got to be friends
34:56
Speaker 1: because she experienced a tremendous amount of guilt for identifying
35:01
Speaker 1: this man and him serving time for something he didn't do.
35:05
Speaker 1: And yeah, they wrote a book together, which is now.
35:07
Speaker 1: I was like, oh man, that's tell me that's going
35:09
Speaker 1: to be a movie soon. And as of like a
35:11
Speaker 1: couple of months ago, it was. It was optioned O
35:15
Speaker 1: your film. Nice. It's called the books called Picking Cotton.
35:19
Speaker 1: Oh my, uh yeah, I know, um Picking Cotton colon
35:22
Speaker 1: Our Memoir of Injustice and Redemption Semi colon. Oh god.
35:28
Speaker 1: So yeah. The good luck he had, though, was that
35:31
Speaker 1: Bobby Pool and Ronald Cotton were in the same jail
35:35
Speaker 1: together and they were frequently mistaken for one another. That's
35:38
Speaker 1: how much they really looked alike, and I guess um
35:41
Speaker 1: Bobby pool um blab to another inmate that he was
35:47
Speaker 1: the one who had really raped Jennifer Thompson and that
35:49
Speaker 1: Cotton was in there, uh wrongfully, and that word got
35:54
Speaker 1: around and then finally, thanks to DNA evidence, Ronald Cotton
35:57
Speaker 1: was was excluded from the crime. Yeah, nice sending to
36:01
Speaker 1: that story, it is, that's the only one in the
36:04
Speaker 1: list that does have a nice ending there, that's true. Uh. So,
36:10
Speaker 1: here's the other thing with eyewitness testimony or should we
36:12
Speaker 1: take a break to all right, let's take a break
36:16
Speaker 1: and I'll tell you about that other thing right after this.
36:46
Speaker 1: So here's the other thing about eyewitness testimony is that, uh,
36:53
Speaker 1: like you have to do this a bunch of times.
36:55
Speaker 1: It's not like you identify someone in a police lineup
36:58
Speaker 1: and then you're in court the next day. You identify
37:01
Speaker 1: someone in a lineup, and then you're gonna get grilled
37:04
Speaker 1: by cops after that, and then you're gonna get talked
37:07
Speaker 1: to you by your attorney beforehand, and you're gonna be
37:10
Speaker 1: recalling this and describing this scene and this who you
37:14
Speaker 1: think is a perpetrator a lot of times. And every
37:17
Speaker 1: time this happens, Um something can go wrong with your
37:22
Speaker 1: recall basically, yeah, yeah, So, I mean, like we've talked
37:25
Speaker 1: about this so many times, but every time you recall
37:27
Speaker 1: a memory, you are adding to it. You're um, you're
37:32
Speaker 1: adding more information to it, right, and that information can
37:37
Speaker 1: be incorrect or flawed. And if we, if our brains
37:41
Speaker 1: kind of strive to create as complete a picture as possible,
37:44
Speaker 1: if the memory originally is incomplete, the more we recall it,
37:48
Speaker 1: the more we're gonna round it out to create this
37:50
Speaker 1: this this picture. And since part of the process, like
37:53
Speaker 1: you're saying, of going through the criminal justice system as
37:57
Speaker 1: an eyewitnesses to recall over and over and over again,
38:00
Speaker 1: by definition, that process um leads to contaminated evidence, in
38:05
Speaker 1: this case, the evidence of eyewitnesses um testimony. Yeah, and
38:10
Speaker 1: you know, not to mention when cops get in there
38:12
Speaker 1: and they ask leading questions a lot of times, and
38:15
Speaker 1: even this one example is really great, even swapping out
38:18
Speaker 1: one word that you might not think matters if if
38:22
Speaker 1: you hear the questions did you see the broken headlight?
38:25
Speaker 1: As opposed to did you see a broken headlight? That
38:29
Speaker 1: takes on a whole different meaning because in that first one,
38:32
Speaker 1: the cop is basically saying there was a broken headlight
38:36
Speaker 1: and did you see it not? Was there one? Yep?
38:39
Speaker 1: That's called the misinformation effect, and it can be as
38:41
Speaker 1: innocuous as that it can be purposeful, like if a
38:44
Speaker 1: cop believes that the suspect is the one UM. Cops
38:48
Speaker 1: have been known to ask leading questions, and when you
38:52
Speaker 1: have an eye witness who's kind of so so on something,
38:57
Speaker 1: after a few leading questions and they're answering, they can
39:00
Speaker 1: become more and more confident in their um in their
39:04
Speaker 1: their memory, their recall of the event. And then that
39:08
Speaker 1: coupled with the fact that well, this is the right person, obviously,
39:12
Speaker 1: because the cops wouldn't be prosecuting UM or arresting somebody
39:17
Speaker 1: if it wasn't the right person. That just gives the
39:20
Speaker 1: whole thing even more confidence. And studies have found over time,
39:24
Speaker 1: the more confidence um or the the longer and more
39:29
Speaker 1: often a memory is recalled, the more confidence grows associated
39:33
Speaker 1: with it. Right, right, So there's this, there's like a
39:38
Speaker 1: um a negative correlation over time between confidence and accuracy
39:45
Speaker 1: of a of a memory over time. That's a big
39:49
Speaker 1: distinction that we'll get into later. But the longer it
39:52
Speaker 1: goes on, so say like from the time of crime
39:54
Speaker 1: occurs to the time the court date comes or the
39:58
Speaker 1: trial starts could be a year, and you, the eyewitness,
40:02
Speaker 1: might have had to recall this for half a dozen
40:05
Speaker 1: people at least, not to mention all the friends and
40:08
Speaker 1: family that you've shared the story with. And so what
40:11
Speaker 1: a lot of people say is by the time maybe
40:14
Speaker 1: the second, third, fourth time you're recalling this, you're not
40:17
Speaker 1: recalling your original memory any longer. You're recalling the story
40:21
Speaker 1: that was helped to be fabricated by the cops and
40:25
Speaker 1: the prosecutors and in some part by yourself. Just from
40:28
Speaker 1: telling this. You're recalling the story. You're not recalling the
40:31
Speaker 1: actual memory. And that's a real problem because that's how
40:34
Speaker 1: people get um wrongly convicted by eyewitnesses who go into
40:38
Speaker 1: court and say, I'm a certain that that was the
40:41
Speaker 1: person that I saw commit that crime. Yeah. And the
40:44
Speaker 1: thing I mean, if you just think about in your
40:46
Speaker 1: own lives, uh not, I mean, forget crimes and forget courtrooms, Like,
40:52
Speaker 1: just think about stories that you like, great stories from
40:55
Speaker 1: your life that you've told a bunch of different times
40:57
Speaker 1: about this one time when like these become so burned
41:00
Speaker 1: in your brain as these great stories that like I'm
41:04
Speaker 1: always curious too, Like I wish I had video of
41:07
Speaker 1: these stories as they happened. Does It'll be kind of
41:10
Speaker 1: fun to go back and see this funny story about
41:12
Speaker 1: when like my friend and I got shaken down by
41:16
Speaker 1: the Texas Highway Patrol. Like I tell the story all
41:18
Speaker 1: the time, but it turns out, wonder what really happened
41:21
Speaker 1: that day though, right like by the by the end
41:24
Speaker 1: of the store, by the time the story is told,
41:26
Speaker 1: it's like Chuck Norris himself as Walker Texas Rangers doing
41:30
Speaker 1: the search, or or my ghost story in Athens, Like
41:33
Speaker 1: to me, I tell that story exactly as it happened,
41:37
Speaker 1: but who knows. Well, yeah, it's kind of like you're
41:40
Speaker 1: playing a game of telephone with yourself over time, you know,
41:43
Speaker 1: like stuff just gets kind of muddled and again, normally
41:46
Speaker 1: this doesn't matter, you know, unless you happen to be
41:49
Speaker 1: telling a bit of a fish tale to somebody who
41:51
Speaker 1: can't stand fish tales and and calls you out on it.
41:55
Speaker 1: It doesn't really matter, right, Like it does matter in
41:58
Speaker 1: a court of law, and the fact that the courts
42:01
Speaker 1: have continued to pretend like this this isn't an actual
42:04
Speaker 1: implication of the human memory. The human memory is actually
42:08
Speaker 1: infallible and just continued on with eyewitness testimony has been
42:12
Speaker 1: a problem in the past. I'm not sure if we've
42:15
Speaker 1: gotten that across or not. And consider this too, that juries,
42:19
Speaker 1: I mean, we talked about that confidence building over time.
42:23
Speaker 1: By the time you get to that jury and you
42:25
Speaker 1: are super confident, that's gonna have a huge impact. Juries
42:28
Speaker 1: are going to be far more influenced by a confident
42:31
Speaker 1: witness than someone's like, Hey, I'm pretty sure, but you know,
42:34
Speaker 1: if I'm really being honest, because I'm on the witness stand,
42:37
Speaker 1: I can't be sure. Yeah, that is a rare eye
42:41
Speaker 1: witness from what I can tell that that by the
42:43
Speaker 1: time the trial comes along, they have been so prepped
42:46
Speaker 1: and and um guided and have become so confident that,
42:51
Speaker 1: from what I can tell, it would be really rare
42:54
Speaker 1: to hear an eye witness be like I'm not so sure.
42:57
Speaker 1: Maybe they probably wouldn't make it to the wit in
43:00
Speaker 1: a stand because the prosecutor doesn't want somebody like that
43:03
Speaker 1: on the stand. So what you're gonna hear in court
43:05
Speaker 1: is yes, I'm absolutely sure, And you know, juries are
43:09
Speaker 1: just normal people. They're not doing the research on you know,
43:13
Speaker 1: the possible infallibility or the possible fallibility of eyewitness testimony.
43:19
Speaker 1: So it's up to the defense attorneys to kind of
43:23
Speaker 1: poke holes in this stuff, and so they will. But
43:27
Speaker 1: for a long time, this was really surprising to me.
43:29
Speaker 1: I had no idea um courts wouldn't allow expert testimony
43:35
Speaker 1: that that basically taught jurors how many problems there are
43:41
Speaker 1: with human memory, and that eyewitness testimony is not all
43:44
Speaker 1: it's cracked up to be, and that not only should
43:48
Speaker 1: you not be wowed by the confidence of somebody who
43:53
Speaker 1: comes into court a year after the crime is certain,
43:57
Speaker 1: you should probably discount that that testimony you all together. Yeah,
44:01
Speaker 1: And the reason that they weren't allowed is that they
44:04
Speaker 1: claimed that was common sense, Like everybody knows that our
44:08
Speaker 1: memories aren't great, and eyewitness testimony probably isn't great, Whereas
44:13
Speaker 1: it seems to me obvious that you would want to
44:15
Speaker 1: get an expert in there to at least explain this stuff,
44:19
Speaker 1: especially in like a capital case. Yeah, I mean, you
44:21
Speaker 1: can still make up your own mind, but at least
44:24
Speaker 1: know the facts and the science behind eyewitness identification, so
44:29
Speaker 1: you can like take that into consideration as a juror. Right,
44:33
Speaker 1: that's just not the case, that wasn't it. But then
44:35
Speaker 1: apparently they started um turning overturning convictions because the expert
44:41
Speaker 1: witness on eyewitness testimony UM was disallowed. And once that
44:47
Speaker 1: started happening, they started allowing them in the actual trials.
44:51
Speaker 1: But that's kind of like, if you have a defense
44:53
Speaker 1: attorney and you're you're, you know, being um tried for
44:58
Speaker 1: a really important cry that you could get some serious
45:01
Speaker 1: time for. Do you want that attorney to bring in
45:04
Speaker 1: an witness, an expert witness on eyewitness testimony? For sure? Yeah.
45:09
Speaker 1: The Supreme Court themselves in nineteen seventy seven ruled seven
45:13
Speaker 1: to two, uh, that eyewitness testimony is constitutional. It does
45:18
Speaker 1: not violate the fourteenth Amendment, even if it's suggestive. But
45:23
Speaker 1: they said it was subject to five factors. That just depends.
45:26
Speaker 1: It's a case by case thing. But UM, the witness's
45:29
Speaker 1: degree of attention, So you have to determine that, um,
45:32
Speaker 1: the opportunity of the witness to view the criminal at
45:35
Speaker 1: the time of the crime. So I guess just literally
45:39
Speaker 1: physically were you able to see this happen right, or
45:42
Speaker 1: smell or here or lick the criminal? Um? The accuracy
45:47
Speaker 1: of the prior description of the criminal. That's a big
45:50
Speaker 1: one and that still holds up today. Yeah, like if
45:53
Speaker 1: if you told the cops initially that the guy had
45:55
Speaker 1: a mustache and you didn't have a mustache, you're going
45:58
Speaker 1: to hear about that from the defense during during the trial.
46:02
Speaker 1: And we'll get into that later on. But that that,
46:04
Speaker 1: you know, that sort of virgin description, is that the
46:08
Speaker 1: right word? I love it is the one that really
46:12
Speaker 1: should count sure, all right? And then what were the
46:14
Speaker 1: last two factors of the five um the level of
46:18
Speaker 1: certainty demonstrated at the confrontation. And by confrontation they mean
46:23
Speaker 1: that that's the thing that you always see on like
46:25
Speaker 1: courtroom dramas where the witness they say, you know, do
46:30
Speaker 1: you see the perpetrator here today? And the witness says, yes,
46:33
Speaker 1: that man there, and then they say, let the records
46:36
Speaker 1: show that the the witnesses pointing at the defendant. Then
46:39
Speaker 1: then Perry Mason farts, right. That's the that's the particular
46:45
Speaker 1: one that's under attack today because they're saying, like, how
46:48
Speaker 1: certain does that witness seem when they confront the defendant
46:52
Speaker 1: in court? And then the last one is the time
46:55
Speaker 1: between the crime and the lineup, like, you know, was
46:59
Speaker 1: it What if the witness saw the crime and then
47:02
Speaker 1: the cops don't catch the person for you know, three months?
47:06
Speaker 1: Is that too long? Like does the witness become unusable
47:10
Speaker 1: at that point? And those five those were the tests
47:13
Speaker 1: for constitutionality of an eye witnesses testimony. Yeah, I think
47:18
Speaker 1: those are five pretty decent factors to consider. Yeah, except
47:23
Speaker 1: for the one, the one about the certainty demonstrated confrontation.
47:27
Speaker 1: And that's the big battle toy, because some people are like, look, man,
47:31
Speaker 1: if human memory is that fallible, maybe we should just
47:34
Speaker 1: get rid of eyewitness testimony altogether. Right, But now that
47:38
Speaker 1: I think is the approach, Like, hey, why don't we
47:40
Speaker 1: just treat it like anything that can be contaminated from uh,
47:45
Speaker 1: from like physical evidence, Like, why don't we just treat
47:48
Speaker 1: this like physical evidence and say, you know it was
47:51
Speaker 1: that again, that virgin identification is the one that counts,
47:55
Speaker 1: and everything after that is tainted. Yeah, And so everybody
47:59
Speaker 1: on this there's a there's kind of a battle over
48:01
Speaker 1: just how much confidence relates to um accuracy and memory. Right,
48:09
Speaker 1: but both sides say everything after that first recall, whether
48:15
Speaker 1: it's telling the cop on the scene of the crime,
48:18
Speaker 1: what you saw or whether it's the lineup wherever it is.
48:22
Speaker 1: The first memory test is what it's called UM. The
48:25
Speaker 1: first time you do that, that is the only evidence
48:28
Speaker 1: that should be admissible, and everybody can talk about that evidence,
48:31
Speaker 1: and you can come to court and describe that evidence,
48:34
Speaker 1: but every other time you recall it after that, it
48:37
Speaker 1: should be considered contaminated evidence, just as much as you
48:40
Speaker 1: would consider um, somebody dropping a blood on a blood
48:46
Speaker 1: sample as contaminated, or smearing a fingerprint is contaminated. Same thing.
48:52
Speaker 1: That's the big, the big trux. Everybody says, disregard everything
48:55
Speaker 1: after that. Where they disagree, though, Chuck, is just how
49:00
Speaker 1: much during that first UM, that first memory test, how
49:06
Speaker 1: much confidence is correlated to accuracy? And some people say
49:12
Speaker 1: it's very highly correlated. Like one guy said that in
49:15
Speaker 1: I think fifteen different experiments, they found that the accuracy
49:20
Speaker 1: was accurate. Um confidence indicated in accuracy. And other people
49:28
Speaker 1: are like, that's flim flam. Don't listen to that guy.
49:31
Speaker 1: But that's the battle that's going on right now. But
49:33
Speaker 1: everybody agrees the whole courtroom, that's the man right there
49:37
Speaker 1: that that shouldn't hold any water whatsoever. The problem is
49:41
Speaker 1: that holds the most water, because that's what's done in
49:43
Speaker 1: front of a jury. These are human beings. You know,
49:46
Speaker 1: someone might carry that kind of confidence, uh in every
49:51
Speaker 1: area of their life, whereas someone else might be very
49:55
Speaker 1: unsure about everything in their life, and that wouldn't be
49:58
Speaker 1: a time for them to be like, you know, someone
50:00
Speaker 1: who's not very confident, it's probably gonna have a hard
50:02
Speaker 1: time being super confident about something this important, sure, you know,
50:07
Speaker 1: but you also could imagine that that person would maybe
50:10
Speaker 1: be more easily coached than than somebody who does have
50:14
Speaker 1: a lot of self confidence. Yeah, and that the phrase
50:18
Speaker 1: this is that's what it says. The T shirts say,
50:22
Speaker 1: coach him up. So you want to go over any
50:24
Speaker 1: of these other ones, I guess we can. I mean,
50:27
Speaker 1: this is all sort of innocence projects stuff. Um, I mean,
50:31
Speaker 1: there's certainly been plenty of examples over the years. I
50:33
Speaker 1: think of the three and well, how many you said,
50:37
Speaker 1: there's three fifty two? Now three that I saw three
50:41
Speaker 1: sixty five convictions at this time. Let's just say it
50:44
Speaker 1: was three forty nine that they had overturned. Seventy of
50:48
Speaker 1: them were based on the testimony of an eyewitness and
50:51
Speaker 1: this is just death row, like forget muggings. Yeah, the
50:58
Speaker 1: I don't know if it's all just death row or not,
50:59
Speaker 1: but that's it's some of these two were not just
51:03
Speaker 1: single witnesses, multiple eyewitnesses, which if there's one thing that
51:07
Speaker 1: basically says there was a copper prosecutor who coached everybody
51:12
Speaker 1: to basically share the same story, that's a it's a
51:15
Speaker 1: overturned conviction with multiple eye witnesses that DNA evidence shows
51:20
Speaker 1: we're all incorrect. Yeah, this one right here was especially maddening.
51:25
Speaker 1: Jerome White in ninety nine was convicted of rape and
51:28
Speaker 1: robbery and he was exonerated twelve years later. But the
51:32
Speaker 1: real guy who did the crime was in the actual
51:35
Speaker 1: same lineup where White was identified. So that one's especially
51:40
Speaker 1: tough bill to swallow. The one that gets me. Um,
51:43
Speaker 1: do you remember Troy Davis. Like back in two thousand
51:47
Speaker 1: and eleven, Georgia Um executed Troy Davis for the murder
51:51
Speaker 1: of a cop, Mark McPhail um, Right, yeah, Don in Savannah,
51:57
Speaker 1: and there was no physical evidence and no weapon, nothing
52:02
Speaker 1: tied Troy Davis to the crime except for nine eye witnesses,
52:07
Speaker 1: seven of which recanted their testimony, and um, there was
52:12
Speaker 1: a big deal because a lot of people are like,
52:13
Speaker 1: it looks like Georgia's going to execute an innocent man.
52:16
Speaker 1: We need to get this commuted to a life sentence
52:19
Speaker 1: so we can try to figure this out. And there
52:21
Speaker 1: was a petition that went around I remember signing it.
52:24
Speaker 1: There was six sixty thousand signatures on this petition, and
52:28
Speaker 1: it still didn't get his sentence commuted, and Georgia executed
52:31
Speaker 1: what was almost certainly an innocent man for the murder
52:35
Speaker 1: of Mark McPhail. Yeah, that was tough, which also means
52:38
Speaker 1: that the murderer of Mark McPhail is still out there somewhere. Yeah.
52:43
Speaker 1: I think that's not mentioned enough in these cases. It's
52:46
Speaker 1: like it's obviously we should think about the victim, then
52:50
Speaker 1: the second victim, which is a person falsely accused, and
52:53
Speaker 1: then there's also a murderer out there. Yep. Maybe, Yeah,
52:57
Speaker 1: that was a That's another episode I want to do,
52:59
Speaker 1: is is you know times when the the um when
53:04
Speaker 1: almost certainly innocent people were executed. Okay, there'll be a
53:09
Speaker 1: fun one. That's a good title for the You gotta
53:12
Speaker 1: put the m in there too. Yeah. Uh, well, that's
53:15
Speaker 1: it for eyewitness testimony unless you have something else. I
53:18
Speaker 1: got nothing else. Well, Chuck says nothing else. I got
53:20
Speaker 1: nothing else. So that means everybody, it's time for a
53:23
Speaker 1: listener mail. This is a very sweet email. Hey guys.
53:29
Speaker 1: On Father's Day in two thousand fifteen, our son Aaron
53:32
Speaker 1: died from cancer at the age of forty. One of
53:35
Speaker 1: his last wishes was for his beloved Australian shepherd dog
53:38
Speaker 1: Scully to live on a family farm with some wonderful
53:40
Speaker 1: friends he knew from Pennsylvania, U scullies with was with
53:44
Speaker 1: us in southern California at the time, so I began
53:46
Speaker 1: looking at options to send her back, and it became
53:48
Speaker 1: obvious at driving Scully to Gettysburg was the only true
53:51
Speaker 1: way to say goodbye and carry out Aaron's wish. I
53:54
Speaker 1: announced that the family I was taking her back, and
53:56
Speaker 1: our daughter, who would come home to be by a
53:58
Speaker 1: side while he was in auspice, quickly said she wanted
54:01
Speaker 1: to come with me. Without any further delay, the three
54:04
Speaker 1: of us took off across the country. After a few
54:07
Speaker 1: hours of listening to the radio, our daughter Brandy said,
54:10
Speaker 1: do you want to listen to some podcasts? Sure, was
54:12
Speaker 1: my response. What's a podcast? So she plugged in her
54:15
Speaker 1: phone and started an episode of Stuff You Should Know,
54:17
Speaker 1: And from that moment on, for the next four days,
54:19
Speaker 1: we listened to an endless stream of you guys. I
54:22
Speaker 1: want to thank you for helping us cope with the
54:24
Speaker 1: pain and heartache we were dealing with your banter and fun.
54:28
Speaker 1: We're very therapeutic as my daughter and I traveled across
54:30
Speaker 1: country with our thoughts and Scully. Being with my daughter
54:34
Speaker 1: and sharing all this time together with you by your
54:36
Speaker 1: sides was one of the best experiences of my life.
54:39
Speaker 1: Given the circumstances, I now listen to you guys often,
54:42
Speaker 1: and my daughter even bought me a Jerry quote blank
54:47
Speaker 1: T shirt as a reminder of our time together. And
54:51
Speaker 1: that is from Doug and Brandy Bell. Thanks a lot, Doug,
54:55
Speaker 1: and thanks a lot, Brandy. I like the cut of
54:57
Speaker 1: your jib for suggesting stuff you should Know. Yeah, terrible circumstance,
55:01
Speaker 1: but I'm glad Scully's on that farm in Pennsylvania. Thanks Doug,
55:05
Speaker 1: Thank you, Brandy and uh On behalf of all of
55:08
Speaker 1: us our deepest condolences. We're glad that we could have
55:12
Speaker 1: some small part in making it a little better for
55:14
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