Latest / Wrongful Conviction / #170 Wrongful Conviction: Junk Science - Eyewitness Testimony

Transcript

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

0:00
Speaker 1: It's a warm summer evening in Virginia, where a nine
0:04
Speaker 1: to one to one operator answers a call. There's a
0:07
Speaker 1: woman on the other end of the line. She says
0:10
Speaker 1: she's been attacked. Police arrive at the victim's home and
0:17
Speaker 1: they take a statement. The victim, a white woman, says
0:21
Speaker 1: that as she was walking to her apartment, she came
0:24
Speaker 1: across a man laying on the ground. He was clutching
0:28
Speaker 1: his leg. She thought he must have fallen off the
0:30
Speaker 1: bike that was toppled over next to him, so she
0:33
Speaker 1: bent down to help him, and that's when he grabbed her,
0:37
Speaker 1: beat her, and raped her. The victim told the police
0:42
Speaker 1: everything she could remember about her attacker. She said the
0:45
Speaker 1: man was black with a light complexion. He had a mustache,
0:50
Speaker 1: a beard, and some scratches on his face. Before the
0:54
Speaker 1: attacker left the scene of the crime, he told the
0:57
Speaker 1: victims some vague details about his life. He told her
1:01
Speaker 1: that he had quote had other white women. The police
1:05
Speaker 1: escort the victims to the hospital, where a rape kit
1:08
Speaker 1: is taken and sent off to a crime lab. You're
1:19
Speaker 1: eighteen years old, just graduated from high school. Since you
1:23
Speaker 1: were thirteen, you knew that you wanted to be a firefighter,
1:27
Speaker 1: and now you're doing it. You're attending the fire academy
1:31
Speaker 1: this summer. You're also working at a theme park, collecting
1:34
Speaker 1: tickets running the rides. It's not the most glamorous job,
1:38
Speaker 1: but hey pays the rent. A few months ago, you
1:43
Speaker 1: moved out of your parents' house and into an apartment
1:45
Speaker 1: with your girlfriend. Everyone says you're too young, but you
1:49
Speaker 1: don't care what they think. You're planning your future together.
1:53
Speaker 1: One evening, you finish up your shift at the theme
1:55
Speaker 1: park and head to the office to clock out. You
1:59
Speaker 1: see a cop there chatting with your boss. You don't
2:02
Speaker 1: think much of it. There's always some security or police
2:05
Speaker 1: at the park. But then you see your boss sort
2:08
Speaker 1: of flick his head in your direction, and when you
2:11
Speaker 1: try to leave the office, the cops stops you. He says, hey,
2:17
Speaker 1: let me talk to you for a minute. Have you
2:19
Speaker 1: heard about the rape that took place a few days ago,
2:22
Speaker 1: not too far from here. It's like he knew that
2:25
Speaker 1: this crime had been on your mind. You've been making
2:28
Speaker 1: your girlfriend lock the door behind you every time you
2:31
Speaker 1: leave the house. You say, yes, sir, I did hear
2:35
Speaker 1: about it? Do you know who did it? The officer
2:39
Speaker 1: says he has some questions and asks you if you'll
2:41
Speaker 1: come to the police station with him. When you get there,
2:45
Speaker 1: the officer takes you into a small room with a
2:48
Speaker 1: table and a few chairs. He says, wait here, you'll
2:53
Speaker 1: stand in as part of a police lineup, and I'll
2:55
Speaker 1: come back and get you in a few minutes. It
2:58
Speaker 1: dawns on you you're not just here to answer questions.
3:02
Speaker 1: You're a suspect in this crime. You call out to
3:06
Speaker 1: the officer, Wait, what am I doing here? He says,
3:11
Speaker 1: the rapists said that he had been with other white women.
3:15
Speaker 1: Don't you live with your white girlfriend? He closes and
3:19
Speaker 1: locks the door behind him. You lean over in your
3:24
Speaker 1: seat and cover your face with your hands. Who would
3:28
Speaker 1: have known information about your personal life and try to
3:32
Speaker 1: use it against you? Was it one of those cops
3:36
Speaker 1: that used to stop by the fire station when you
3:38
Speaker 1: were at the training academy. Maybe they saw your girlfriend
3:42
Speaker 1: dropping off dinner at the fire station one night. You
3:46
Speaker 1: stop and take a deep breath, reminding yourself that being
3:50
Speaker 1: a black man living with your white girlfriend isn't a crime.
3:54
Speaker 1: At least it's not supposed to be not anymore. And
3:58
Speaker 1: yet none of this seems to matter someone. Some cop
4:03
Speaker 1: already had their eye on you for this very reason,
4:07
Speaker 1: But you didn't do anything wrong, and you're hopeful that
4:09
Speaker 1: the victim's memory of her attacker will set things straight.
4:14
Speaker 1: What you don't know is that just down the hall
4:17
Speaker 1: from where you're sitting, the woman who called nine to
4:20
Speaker 1: one one a few days ago is sitting in front
4:23
Speaker 1: of six pictures. An officer tells her to pick out
4:27
Speaker 1: the face of the man who attacked her. All of
4:31
Speaker 1: the photos set out in front of her are black
4:34
Speaker 1: and white mugshots except for one, yours. You've never been
4:39
Speaker 1: in trouble with the law, and so you don't have
4:42
Speaker 1: a mugshot. Instead, the cop that showed up at your
4:46
Speaker 1: job took a picture of your ID card from the
4:50
Speaker 1: theme park and slipped it into the photo lineup. Yours
4:54
Speaker 1: is not just the only one that's not a mugshot,
4:57
Speaker 1: it's also the only one that's p in color, so
5:01
Speaker 1: it immediately grabs the woman's attention. She chooses your photo
5:07
Speaker 1: and says, I think that's him. The officer comes back
5:14
Speaker 1: in to get you. He brings you into a room
5:16
Speaker 1: with a window in it and asks you to stand
5:19
Speaker 1: in a line with some men. These other men are
5:22
Speaker 1: known as fillers. None of these fillers are potential suspects.
5:27
Speaker 1: The point of them is to see if the victim
5:29
Speaker 1: can identify your face amongst others who are supposed to
5:33
Speaker 1: resemble the suspect. None of these other people's faces were
5:37
Speaker 1: in any of the photos the victim saw except for yours,
5:42
Speaker 1: your color photo ID. That's the only photo that matches
5:46
Speaker 1: the face of anyone in this lineup. There's an officer
5:50
Speaker 1: at the front of the room and he starts barking
5:53
Speaker 1: out orders to you and the fillers. Stand there and
5:57
Speaker 1: look straight ahead. Now turn to your right, Now turn
6:05
Speaker 1: to your left. You follow the directions that are being
6:08
Speaker 1: shouted out. You can't see her because she's on the
6:13
Speaker 1: other side of a one way mirror, but the victim
6:16
Speaker 1: points you out. She says it's him. I'm sure of it,
6:23
Speaker 1: And that's all the information the cops need to hear,
6:27
Speaker 1: and you are arrested on the spot. You sit in
6:32
Speaker 1: jail wondering what in the world you're supposed to make
6:37
Speaker 1: of how this woman mistook you for someone else. You
6:41
Speaker 1: look nothing like the witness's original description of her attacker.
6:46
Speaker 1: She'd reported that he had light skin, a mustache, a beard,
6:50
Speaker 1: and scratches on his face. You have dark skin, You're
6:54
Speaker 1: almost always clean shaven. There are no scratches or marks
6:58
Speaker 1: on your eighteen year old face. How could that picture
7:01
Speaker 1: in her head, the memory of her attacker, change so
7:06
Speaker 1: much in such a short amount of time. What is
7:10
Speaker 1: it about that lineup that made her choose you? You
7:17
Speaker 1: eventually stand trial in front of an all white jury
7:21
Speaker 1: of eight women and four men. You were taught your
7:26
Speaker 1: entire life to trust law enforcement, to believe in this
7:30
Speaker 1: system of justice. The police, officers, judges, lawyers, jurors. They
7:35
Speaker 1: were all there to figure out the truth, to do
7:38
Speaker 1: the right thing. But that image comes shattering down when
7:44
Speaker 1: the jury comes back and finds you guilty of rape, abduction, robbery,
7:52
Speaker 1: and for sodomy. The judge sentences you to two hundred
7:58
Speaker 1: and ten years in prison. After the sentence is read,
8:04
Speaker 1: you slowly look behind you. You try to find your mom,
8:08
Speaker 1: your family. You know they're sitting just behind you, but
8:13
Speaker 1: you can't see a foot ahead of you. Everything goes black.
8:23
Speaker 1: The story you just heard is based on the true
8:25
Speaker 1: events of Marvin Anderson's wrongful conviction six years after he
8:30
Speaker 1: was sentenced to life in prison, another man confessed to
8:33
Speaker 1: attacking the woman who had misidentified Marvin. The man that
8:37
Speaker 1: confessed presented new details to a judge that seemed to
8:41
Speaker 1: prove his guilt in Marvin's innocence. Still, the judge did
8:46
Speaker 1: not vacate marvin sentence. Marvin wrote a letter to the
8:50
Speaker 1: Innocence Project and they took up his case. After years
8:56
Speaker 1: of work, lawyers of the Innocence Project were finally able
8:59
Speaker 1: to convinced the judge to compare Marvin's DNA with the
9:03
Speaker 1: DNA from seamen recovered from the victim. When the rape
9:06
Speaker 1: kit was performed, Marvin was not a match, but another
9:11
Speaker 1: man was a match, the man who had confessed to
9:14
Speaker 1: the crime. After fifteen long years in prison, Marvin walked
9:21
Speaker 1: free and became the ninety ninth person to be exonerated
9:24
Speaker 1: based on DNA evidence. He's since become chief of the Hanover,
9:29
Speaker 1: Virginia Fire Department and serves on the board of the
9:32
Speaker 1: Innocence Project. I'm Josh Dubin civil rights and criminal defense attorney,
9:40
Speaker 1: an innocent ambassador to the Innocence Project in New York. Today,
9:44
Speaker 1: on Wrongful Conviction junk Science, we examine eyewitness testimony when
9:50
Speaker 1: a witness points to a suspect and says that's the
9:53
Speaker 1: person who committed this crime. There is nothing more convincing
9:57
Speaker 1: to a jury, but it is dangerous inaccurate. Over two
10:02
Speaker 1: thirds of people who were later exonerated based on DNA
10:06
Speaker 1: evidence were convicted based on eyewitness testimony. It may sound
10:11
Speaker 1: like a simple premise, but in order for eyewitness testimony
10:15
Speaker 1: to work and be reliable, we need to rely on
10:19
Speaker 1: our own memories and those of others. But it turns out,
10:24
Speaker 1: just as physical evidence can be manipulated, contaminated, or even planted,
10:30
Speaker 1: so too can memories. In the early eighteen eighties, Professor
10:44
Speaker 1: Wilhelm Want, the father of modern psychology, was giving a
10:48
Speaker 1: lecture at the University of Leipzig in Germany. One of
10:52
Speaker 1: his students attending the lecture was Hugo Munsterberg and Hugo
10:57
Speaker 1: when he heard this lecture, he was hooked. He was
11:01
Speaker 1: so fascinated by psychology and he began to study under
11:05
Speaker 1: the father of psychology himself. After completing his studies, Hugo
11:10
Speaker 1: started working at Harvard University, where he led the Experimental
11:14
Speaker 1: Psychology Lab. Hugo was especially interested in the concrete everyday
11:20
Speaker 1: applications of psychology. He wanted to study if and how
11:25
Speaker 1: psychology impacted juries and trial outcomes, and so he began
11:30
Speaker 1: to run experiments on the memory of eyewitnesses. In one
11:35
Speaker 1: of his famous experiments, Hugo tested the memories of both
11:39
Speaker 1: adults and children. He showed them a photo. In it,
11:44
Speaker 1: there was a farmer sitting at a table eating some soup.
11:49
Speaker 1: Hugo had his test subjects looked closely at the photo,
11:53
Speaker 1: then he took the photo away. Hugo then asked him
11:56
Speaker 1: opened endo questions about it, like what did you see
11:59
Speaker 1: in the photo. To these questions, the witnesses responded there
12:04
Speaker 1: was a man in the photo eating his soup. Their
12:07
Speaker 1: memories were accurate, But then Hugo started asking what he
12:12
Speaker 1: called suggestive questions. He asked, for example, did you see
12:17
Speaker 1: the stove in the room. Many of the eyewitnesses answered yes,
12:22
Speaker 1: they saw the stove, but there was no stove in
12:25
Speaker 1: the photo. Hugo found that through asking suggestive questions like these,
12:31
Speaker 1: he was able to get his test subjects to remember
12:34
Speaker 1: dozens of objects in the photo that never existed. In
12:38
Speaker 1: another experiment, Hugo sat at a desk at the front
12:42
Speaker 1: of a room and told his students, remember every detail
12:46
Speaker 1: of what I'm about to do. Starting now. With his
12:51
Speaker 1: right hand, Hugo took out a colorful disk and began
12:55
Speaker 1: to spin it. While staring at the disk that he
12:58
Speaker 1: was spinning with his right hand, he used his left
13:01
Speaker 1: hand to take out a pencil and write something down
13:04
Speaker 1: on a piece of paper, Keeping that disk spinning in
13:07
Speaker 1: his right hand, he used his left hand again to
13:10
Speaker 1: take out a cigarette case, open it, take out a cigarette,
13:15
Speaker 1: shut the case with a loud click, and put it
13:18
Speaker 1: back into his pocket. At one hundred students who saw
13:22
Speaker 1: this demonstration, only eighteen of them were able to report
13:27
Speaker 1: what Hugo had done with his left hand, and so
13:30
Speaker 1: Hugo was not only able to show that witnesses might
13:33
Speaker 1: fabricate details of a memory that never existed, but they
13:37
Speaker 1: are also likely to not remember many details of events
13:41
Speaker 1: that happened right in front of their faces. These experiments
13:46
Speaker 1: also demonstrated that the memories of two different people observing
13:50
Speaker 1: the same event or photo could be wildly different, despite
13:54
Speaker 1: the fact that they had no stake in line or
13:57
Speaker 1: making the outcome of the events appear to have happened
14:00
Speaker 1: one way or another. Hugo also concluded that the witness's
14:04
Speaker 1: own claim of certainty didn't necessarily mean that their memories
14:08
Speaker 1: were more accurate. A witness might say, for example, that
14:12
Speaker 1: they were absolutely certain that there was a stove in
14:15
Speaker 1: the photo, or that he or she was certain that
14:18
Speaker 1: all Hugo did was spin a disk in his right hand,
14:22
Speaker 1: But even as they claimed certainty, there was proof that
14:25
Speaker 1: their memories were incorrect. When his book on these experiments
14:30
Speaker 1: was published in nineteen oh eight, The New York Times
14:33
Speaker 1: wrote that his studies had the potential to revolutionize courtroom
14:37
Speaker 1: procedure and to quote bring light and order in domains
14:41
Speaker 1: where all or almost all is darkness and confusion. But
14:46
Speaker 1: that's not what happened, because Hugo also had many critics
14:50
Speaker 1: who scoffed at his attempt to apply psychology to the courtroom,
14:55
Speaker 1: and so courtroom procedure around eyewitness testimony was not completely
14:59
Speaker 1: re revolutionized. To this day, countless innocent men and women
15:05
Speaker 1: are sent to prison based on faulty eyewitness testimony. Over
15:10
Speaker 1: a half a century after Hugo's research was mocked, psychologist
15:15
Speaker 1: Elizabeth Loftis took another look at eyewitness testimony with a
15:19
Speaker 1: more modern take on Hugo's experiments, she was able to
15:23
Speaker 1: prove just how unreliable eyewitness testimony is and why it
15:28
Speaker 1: shouldn't be trusted as the gold standard of evidence in
15:31
Speaker 1: a courtroom or in a police lineup.
15:37
Speaker 2: Many people, unfortunately believe that memory works like a recording device.
15:43
Speaker 2: You take in the information, you record it, you just
15:46
Speaker 2: play it back the way some kind of video recorder
15:49
Speaker 2: would work, And that is not really the way memory works.
15:53
Speaker 2: What happens when we're remembering something is we tend to
15:57
Speaker 2: take bits and pieces of experience, sometimes from different times
16:01
Speaker 2: of places. We bring it together and we construct a memory.
16:06
Speaker 2: So I like to think of memory a little bit more,
16:09
Speaker 2: not like a recording device, but more like a Wikipedia page.
16:14
Speaker 2: You can go in there and edit it, but so
16:16
Speaker 2: can other people.
16:18
Speaker 1: Today on our show, we're speaking with renowned psychologist Elizabeth Loftus.
16:24
Speaker 1: Elizabeth is currently a professor at the University of California, Irvine.
16:29
Speaker 1: She studies human memory, specifically the malleability of memory, which
16:34
Speaker 1: of course is a huge factor in cases where eyewitness
16:38
Speaker 1: testimony is used as evidence. So, Elizabeth, can you tell
16:43
Speaker 1: us about some of the experiments that you worked on
16:46
Speaker 1: to study memories of eyewitnesses.
16:49
Speaker 2: You know. One of the ways that I and my
16:53
Speaker 2: collaborators have studied memory and hundreds of studies you know,
16:57
Speaker 2: probably now forty fifty thousand participants over the course of
17:02
Speaker 2: my career. One of the ways that we study memory
17:06
Speaker 2: is we'll show people a simulated crime. For example, we
17:12
Speaker 2: will then expose people to some new information about that crime.
17:18
Speaker 2: So they might have seen a bad guy take a
17:21
Speaker 2: wallet out of somebody's purse and he's wearing a green jacket,
17:25
Speaker 2: but they then get misinformation from another witness or from
17:30
Speaker 2: a leading question that the jacket was brown. And finally,
17:35
Speaker 2: we will ask our witnesses, tell me exactly what you saw,
17:39
Speaker 2: give me as much detail as you can remember, and
17:42
Speaker 2: many of them will then remember that the jacket was
17:45
Speaker 2: brown and not green, or we can make them believe
17:49
Speaker 2: the bad guy had curly hair instead of straight hair.
17:53
Speaker 2: All by exposing people to new information, misleading information, it
17:59
Speaker 2: impairs our own memory, and this is now referred to
18:03
Speaker 2: in the psychological literature as the misinformation effect.
18:08
Speaker 1: So give me another example. What are some other experiments
18:12
Speaker 1: you did where misinformation just kind of gets slipped into
18:16
Speaker 1: the person's memory without them even knowing it.
18:19
Speaker 2: We've shown people a simulated accident. A car goes through
18:24
Speaker 2: an intersection with a yield sign and then ends up
18:27
Speaker 2: hitting a pedestrian and pedestrian falls over. A police officer
18:33
Speaker 2: comes to tend to the pedestrian who's lying down on
18:36
Speaker 2: the ground. Afterwards, our witnesses are asked a series of questions,
18:43
Speaker 2: and one of those questions might be did another car
18:48
Speaker 2: pass the red dots and when it was at the
18:50
Speaker 2: intersection with the stop sign. Now, that is a very
18:55
Speaker 2: clever question, just so you can appreciate the cleverness you
18:59
Speaker 2: as the wait think I'm asking you about whether another
19:02
Speaker 2: car passed while the Dobson was stopped. You revisualize the scene,
19:09
Speaker 2: and in your visualization you might put in a stop
19:12
Speaker 2: sign that I've mentioned as part of the question. You
19:15
Speaker 2: think you're answering about whether another car stop, but this
19:19
Speaker 2: stop sign kind of invades your consciousness, almost like a
19:23
Speaker 2: trojan horse. You don't even detect that it's coming. And
19:28
Speaker 2: after that, many people will then claim I saw a
19:33
Speaker 2: stop sign at that intersection. And you can show them
19:37
Speaker 2: two scenes, the scene with a stop sign or the
19:39
Speaker 2: scene with a yield sign. They'll pick the one with
19:42
Speaker 2: a stop sign. They have succumbed to the question and
19:47
Speaker 2: fallen sway to its suggestion, and now it appears as
19:51
Speaker 2: if this is their memory.
20:03
Speaker 1: Now, I want to get back to the way cops
20:06
Speaker 1: influence a witness. I've dealt with cases where the cops
20:11
Speaker 1: know who the suspect is and do things either consciously
20:16
Speaker 1: or even unconsciously, I guess, to encourage the witness to
20:21
Speaker 1: choose the person that they believe is their suspect. Have
20:25
Speaker 1: you dealt with anything like that in your research.
20:29
Speaker 2: One of my favorite examples a case I testified in
20:33
Speaker 2: in California. There's a crime. The eyewitness has shown a
20:37
Speaker 2: six pack six photographs. The eyewitness says, I really don't
20:43
Speaker 2: recognize anybody, and the officer says, wait a minute, I
20:48
Speaker 2: see your eyes drifting down to number six. What's going
20:51
Speaker 2: on there? Eventually number six gets seized upon identified, and
20:56
Speaker 2: that's the person who gets prosecuted. So there's a highly
21:01
Speaker 2: suggestive thing going on here. I'm willing to get, certainly
21:06
Speaker 2: to give these officers the benefit of the doubt and
21:09
Speaker 2: say they they're not even aware in a way of
21:13
Speaker 2: their own influence, and that a lot of what's happening
21:17
Speaker 2: is is kind of unwitting.
21:20
Speaker 1: So look, I'm an alleged expert in jury selection, and
21:24
Speaker 1: people are always saying to me, like, how does this
21:26
Speaker 1: affect you? Are you always trying to psychoanalyze me? So
21:30
Speaker 1: tell me a little bit about how this, you know,
21:34
Speaker 1: deep knowledge of memory impacts you. Do you find yourself
21:37
Speaker 1: like not trusting your own memory at times?
21:41
Speaker 2: Well, the one experience that I do have from all
21:43
Speaker 2: these decades of doing this kind of work is I
21:46
Speaker 2: understand that along with those like sort of bits of
21:52
Speaker 2: truth are bits of fiction intermingled in there. And I'm
21:57
Speaker 2: not bothered by that. I understand, and that's part of
22:01
Speaker 2: the malleable nature of memory. I think what this acceptance
22:08
Speaker 2: has done for me is it makes me a little
22:11
Speaker 2: bit more tolerant of the mistakes that friends make, or
22:16
Speaker 2: family members make, or even I myself might make. I
22:20
Speaker 2: don't immediately assume somebody is a big fat liar. They
22:24
Speaker 2: could honestly have a false memory. And I think it's
22:27
Speaker 2: a kind of kinder way to feel about people.
22:30
Speaker 1: Okay, so that's pretty interesting. Do you think this same
22:34
Speaker 1: kindness as you refer to it, that you offer let's say,
22:37
Speaker 1: your friends, your family, even yourself, do you think we
22:40
Speaker 1: should offer witnesses the same kind of kindness in court cases.
22:46
Speaker 2: Do you want to call these people a liar or
22:49
Speaker 2: do you want to accept the fact that maybe some
22:51
Speaker 2: kind of process has led them to develop a set
22:56
Speaker 2: of beliefs and things that feel to them like memory,
23:00
Speaker 2: And it is kinder even in a court case. I
23:03
Speaker 2: think sometimes for lawyers who are challenging these memories to
23:09
Speaker 2: talk about them as potentially false memories rather than talk
23:12
Speaker 2: about the accuser as being a big fat liar.
23:17
Speaker 1: So you're an expert witness in a lot of cases
23:19
Speaker 1: that depend on eyewitness testimony. You know, we've talked a
23:23
Speaker 1: lot throughout the course of this podcast about how some
23:29
Speaker 1: expert witnesses aren't basing their testimony on good science or facts.
23:34
Speaker 1: But you're not that kind of witness. I mean, you've
23:37
Speaker 1: been studying memory for years and years, and you've done
23:40
Speaker 1: experiments and you know, tested this with thousands of participants.
23:45
Speaker 1: You have a lot of data to back up what
23:47
Speaker 1: you're testifying to in court. But tell me, have you
23:50
Speaker 1: ever heard of witness testifying in court or read their
23:53
Speaker 1: testimony and it kind of made you think, well, this
23:56
Speaker 1: isn't science at all. They're actually twisting this so much
24:00
Speaker 1: that it's more like junk science.
24:03
Speaker 2: I guess what I've seen happen in some cases, and
24:07
Speaker 2: this bothers me where I think opposing experts are introducing
24:13
Speaker 2: junk science. It's about trauma. They want to introduce to
24:19
Speaker 2: science that basically says traumatic memories are completely different. Traumatic memories,
24:27
Speaker 2: you know, are stored in the body. Traumatic memories can
24:30
Speaker 2: be relied on traumatic memories that kind of don't have
24:34
Speaker 2: these same problems. In fact, traumatic memories operate under similar
24:40
Speaker 2: in similar ways. They fade over time, they can be
24:44
Speaker 2: influenced by post event information. They're just lots of features
24:50
Speaker 2: of memory that are true, whether you're trying to remember
24:54
Speaker 2: something that's upsetting or whether you're trying to remember something
24:57
Speaker 2: that is a little bit more new and less emotional.
25:03
Speaker 2: You see this in the movies all the time. They're
25:05
Speaker 2: saying something like, I was so frightened when this happened.
25:09
Speaker 2: I'll never forget that face as long as I live.
25:12
Speaker 2: That's an expression of the belief that this traumatic memory
25:17
Speaker 2: is sort of imprinted in the brain and is reliably
25:20
Speaker 2: and solidly there, and you just need to read it out.
25:24
Speaker 2: And that is not the way things work. With memory
25:28
Speaker 2: in general, or even traumatic memories.
25:32
Speaker 1: So tell us more about that, because I do think
25:35
Speaker 1: that when we hear about someone who has been raped
25:40
Speaker 1: or there's been a violent attack, our instinct is that
25:45
Speaker 1: we should believe them no matter what, right, like, why
25:48
Speaker 1: would somebody make this up? So how do we reconcile
25:53
Speaker 1: the desire to believe a victim, or the natural tendency
25:58
Speaker 1: to believe a victim, with the knowledge that memories just
26:02
Speaker 1: aren't the most reliable form of evidence.
26:06
Speaker 2: I think the way we reconcile all this is that
26:09
Speaker 2: when there is somebody with an accusation, we certainly listen
26:14
Speaker 2: to it and examine it. And we don't want to
26:18
Speaker 2: uncritically accept every accusation, no matter how dubious. And we
26:23
Speaker 2: don't want to routinely reject an accusation just because we
26:29
Speaker 2: don't like how it sounds. So I do think there
26:32
Speaker 2: is a way to reconcile these two seemingly conflictual driving forces.
26:39
Speaker 2: But I don't think we forego our democratic principles and
26:45
Speaker 2: and forget about the fact that we're proud to have
26:49
Speaker 2: a legal system that respects the rights of the accused
26:55
Speaker 2: to have a defense.
26:58
Speaker 1: Yeah, I mean, it's a tough to let right, because
27:01
Speaker 1: I've had that instance just last week where you know,
27:07
Speaker 1: I am defending someone who I believe to be innocent.
27:10
Speaker 1: And you know, when people hear about the case, or
27:14
Speaker 1: you tell them about the case, you know, at least
27:16
Speaker 1: what's public knowledge. You know, their reaction is, well, why
27:19
Speaker 1: would somebody make up, you know, a accusation of sexual
27:25
Speaker 1: assault for instance. But the reality is is that they
27:28
Speaker 1: may not be consciously making it up. It may not
27:31
Speaker 1: be a conscious lie. It may just be that their
27:34
Speaker 1: perception and what they think is their reliable memory is
27:39
Speaker 1: just not correct. Now, look, I have my own ideas,
27:43
Speaker 1: and you know, the Innocence Project, as you know, has
27:46
Speaker 1: done a ton of policy work around this and trying
27:49
Speaker 1: to get reform achieved in law enforcement across the country
27:55
Speaker 1: and the way they go about instituting line up and
28:00
Speaker 1: you know, eyewitness identifications. But you tell tell me what
28:05
Speaker 1: you think. What do you think is a way that
28:07
Speaker 1: we can reform the system so that eyewitness identification would
28:11
Speaker 1: be more accurate.
28:13
Speaker 2: First of all, one thing that is important when law
28:17
Speaker 2: enforcement is conducting some kind of test, whether it's with
28:21
Speaker 2: photographs or whether it's with a live lineup, how do
28:25
Speaker 2: you conduct the test. What instruction do you give to
28:28
Speaker 2: the witness who conducts the test? Who are the fillers?
28:33
Speaker 2: The people who are put in the set of photos
28:36
Speaker 2: are put in the lineup along with your suspect. Each
28:41
Speaker 2: of these issues is important, and there are best practices
28:45
Speaker 2: that have been devised by scientists and very thoughtful people
28:51
Speaker 2: in the legal field about what those best practices should be.
28:55
Speaker 2: So best practice, the person conducting the test should not
28:59
Speaker 2: know who the suspect is. That's one of the most
29:02
Speaker 2: important things that In other words, the person conducting the test.
29:07
Speaker 2: It should be what's called a double blind test. The
29:10
Speaker 2: witness doesn't know who the suspect is and the person
29:13
Speaker 2: conducting the test doesn't know who the suspect is. And
29:17
Speaker 2: why that's important is because that means that the person
29:21
Speaker 2: conducting the test cannot inadvertently queue the witness as to
29:26
Speaker 2: who to pick, and the investigator cannot give feedback to
29:32
Speaker 2: the witness, cannot say, good job, that's our suspect, that's
29:37
Speaker 2: who we think did it. Another witness pick that same person.
29:43
Speaker 2: This kind of feedback artificially inflates the confidence of the
29:48
Speaker 2: witness and makes them a more powerful witness. At the
29:52
Speaker 2: time of the trial more impervious to cross examination. It's
29:56
Speaker 2: not a fair situation. So blind testing is one simple
30:01
Speaker 2: reform that's been suggested. How about the instruction you give
30:06
Speaker 2: to the witness. It's very important to have an unbiased
30:10
Speaker 2: instruction to say to the witness, you know the person
30:14
Speaker 2: may or may not be in this lineup. It's just
30:17
Speaker 2: as important to exonerate the innocent as to find the
30:20
Speaker 2: guilty person. You're trying to take pressure off of the witness.
30:26
Speaker 2: Take the pressure off so they don't feel they've got
30:28
Speaker 2: to pick someone anyone in order to solve the case.
30:32
Speaker 2: So that's why that instruction is important. Then there are
30:36
Speaker 2: other issues like who you put into the lineup. What
30:39
Speaker 2: should the fillers look like? Do they just resemble the suspect? No,
30:44
Speaker 2: they should also resemble the description that the witness gave.
30:49
Speaker 2: So if the witness said, you know a skinny guy
30:53
Speaker 2: with medium length hair, you want basically skinny people with
30:58
Speaker 2: medium length hair fitting the description, not just fitting the
31:04
Speaker 2: characteristics of the suspect.
31:07
Speaker 1: What is the biggest takeaway that you think our listeners
31:11
Speaker 1: should have from today's episode.
31:14
Speaker 2: Just because somebody tells you something and they say it
31:18
Speaker 2: with a lot of detail, and they say it with confidence,
31:21
Speaker 2: and they even show emotion when they tell you. It
31:24
Speaker 2: doesn't mean it really happened. It doesn't mean it really
31:28
Speaker 2: happened exactly that way. You need independent corroboration to know
31:34
Speaker 2: whether you're dealing with an authentic memory or one that
31:39
Speaker 2: is a product of some other process imagination, suggestion, misinterpreting dreams,
31:47
Speaker 2: or some other non authentic process.
31:54
Speaker 1: We always try to end each episode with a call
31:57
Speaker 1: to action. So I've been thinking about the lessons today's
32:00
Speaker 1: interview with Elizabeth and just how interesting, informative and really
32:06
Speaker 1: eye opening it's been. When someone's freedom hangs in the balance,
32:11
Speaker 1: we should leave open the possibility that when someone takes
32:14
Speaker 1: a witness stand and claims to have watched a crime
32:17
Speaker 1: unfold or says they are sure they saw the defendant
32:21
Speaker 1: leaving the scene of a crime, they may not be
32:23
Speaker 1: accurately conveying what happened, and not because they're intentionally lying
32:28
Speaker 1: or even shading the truth, but their memory may have
32:31
Speaker 1: been influenced in some way. So consider the surrounding circumstances,
32:37
Speaker 1: Whether they were fed information, if there was a suggestion
32:40
Speaker 1: about who may have committed the crime by a member
32:42
Speaker 1: of law enforcement if the methods used to quote unquote
32:46
Speaker 1: identify a perpetrator were influenced in a way that made
32:50
Speaker 1: the accused stand out. And maybe it's not the most
32:53
Speaker 1: reassuring thing that in an error. When it seems that
32:56
Speaker 1: misinformation is rather popular and it's sometimes difficult to know
33:01
Speaker 1: what the truth actually is. Here is yet another reason
33:04
Speaker 1: to doubt our perception and reality. But remember, your willingness
33:09
Speaker 1: to remain open to all credible possibilities may in fact
33:14
Speaker 1: prevent the next wrongful conviction. Next week, on our final
33:25
Speaker 1: episode of the season, we'll explore how what's known as
33:28
Speaker 1: shaken baby syndrome has been used to falsely implicate people
33:32
Speaker 1: in crimes they did not commit. We'll discuss this with
33:36
Speaker 1: executive director of the Center for Integrity and Forensic Sciences,
33:40
Speaker 1: Kate Judson. Wrongful Conviction Junk Science is a production of
33:46
Speaker 1: Lava for Good Podcasts in association with Signal Company Number One.
33:50
Speaker 1: Thanks to our executive producer Jason Flahm and the team
33:53
Speaker 1: at Signal Company Number One, executive producer Kevin Wardis and
33:57
Speaker 1: senior producers Kara Kornhaber and BRIT's. Our music was composed
34:02
Speaker 1: by Jay Ralph You can follow me on Instagram at
34:05
Speaker 1: dubin Josh. Follow the Wrongful Conviction podcast on Facebook and
34:10
Speaker 1: on Instagram at Wrongful Conviction, and on Twitter at wrong
34:14
Speaker 1: Conviction