“The Certainty of Memory Has Its Day in Court” – New York Times

By LAURA BEIL

Published: November 28, 2011

Witness testimony has been the gold standard of the criminal justice system, revered in courtrooms and crime dramas as the evidence that clinches a case.

Yet scientists have long cautioned that the brain is not a filing cabinet, storing memories in a way that they can be pulled out, consulted and returned intact. Memory is not so much a record of the past as a rough sketch that can be modified even by the simple act of telling the story.

For scientists, memory has been on trial for decades, and courts and public opinion are only now catching up with the verdict. It has come as little surprise to researchers that about 75 percent of DNA-based exonerations have come in cases where witnesses got it wrong.

This month, the Supreme Court heard its first oral arguments in more than three decades that question the validity of using witness testimony, in a case involving a New Hampshire man convicted of theft, accused by a woman who saw him from a distance in the dead of night.

And in August the New Jersey Supreme Court set new rules to cope with failings in witness accounts, during an appeal by a man picked from a photo lineup, and convicted of manslaughter and weapons possession in a 2003 fatal shooting.

Rather than the centerpiece of prosecution, witness testimony should be viewed more like trace evidence, scientists say, with the same fragility and vulnerability to contamination.

Why is a witness’s account so often unreliable? Partly because the brain does not have a knack for retaining many specifics and is highly susceptible to suggestion. “Memory is weak in eyewitness situations because it’s overloaded,” said Barbara Tversky, a psychology professor at Columbia University’s Teachers College in New York. “An event happens so fast, and when the police question you, you probably weren’t concentrating on the details they’re asking about.”

Hundreds of studies have cataloged a long list of circumstances that can affect how memories are recorded and replayed, including the emotion at the time of the event, the social pressures that taint its reconstruction, even flourishes unknowingly added after the fact.

While most of us tend to think memory works like a video recorder, it is actually more like a grainy slide show. Lost details, including imaginary ones, often are added later. One of the earliest and more famous experiments to demonstrate that memories are malleable was conducted by Elizabeth Loftus, a psychology professor at the University of California, Irvine, and an early pioneer of witness memory research.

In a 1974 study published in The Journal of Verbal Learning and Verbal Behavior, she asked participants to view films of fender-benders in which no car windows or headlights were broken. Later, the subjects who were asked how fast the cars were going when they “smashed” into each other — as opposed to “hit” — were more likely to report speeding and describe shattered glass they never actually saw.

In another experiment, conducted in Scotland, participants were four times as likely to report a memory of a nonexistent event — in this case, a nurse removing a skin sample from their little finger — if they had been asked to imagine it just one week before. Others in the experiment read a description, but were not asked to picture it happening.

Even the process of police questioning and prepping for trial can crystallize a person’s own faulty reconstruction. In 2000, Dr. Tversky published a series of experiments conducted at Stanford University in the journal Cognitive Psychology. In one, volunteers read profiles of fictitious roommates with both charming and annoying habits; they were then asked to write either a letter of recommendation or letter making a case for a replacement.

When later asked to repeat the original description, the volunteers’ recollections were skewed by the type of letter they had written. Their minds had shed qualities that didn’t match the first draft of their own recall and had embellished those that did.

“When we don’t remember, we make inferences,” Dr. Tversky said.

Sometimes we miss details because we weren’t paying attention, but sometimes we are concentrating too hard on something else. Nothing is as obvious as it seems.

Few experiments have demonstrated this more notably than one published in 1999 by researchers at Harvard. Participants watched a video of people dressed in either black or white passing a basketball. The subjects were told to count the number of passes made by players in white.

During the test, a woman in a gorilla suit strolled through the players. She was unnoticed by about half the people who took the test, the researchers found. Distraction is not unique to the eyes. During a meeting of the Psychonomic Society this month, Polly Dalton and colleagues at the University of London presented the audio version of the gorilla test, a 69-second recording of two men and two women preparing for a party. Almost all of the study participants instructed to listen to the women did not hear a third man repeating “I’m a gorilla” for 19 seconds midway through the conversation.

The editing of the past occurs without a person’s realizing what has been forgotten. In court, witnesses are asked to tell the truth and nothing but the truth. They think they do. Whether in a story told in a courtroom or at a dinner table, the mind is sometimes prone to blur the distinction between reality and fantasy. Brain scans taken as people “recall” something they did not actually see have many similarities to the brain dwelling on an actual memory.

“That’s one of the striking findings of the studies,” said Daniel Schacter, a psychology professor at Harvard. Whether an event is real or imagined, “many structures involved in the coding and retrieving are the same.”

All this makes sense, he said, when you consider the purpose of memory. He and his colleagues believe that memory is designed not just to keep track of what has happened, but to offer a script for something that might.

Evidence for this also comes from brain scans. Just as the “recall” of a bogus event lights up the brain’s memory centers, so does thinking about something that might occur.

Because the brain uses memories for mental dress rehearsal, we are not wired to retain every facet of an event, scientists say. We don’t have to. A general framework is all that’s necessary to keep from getting lost, or find food, or know what to do when a storm is coming.

One 1979 study asked a small group of people to pick out a penny from a series of 15 similar drawings. Less than half chose correctly, because no one needs to know whether Lincoln faces left or right to pay the cashier. Yet witnesses often are asked to remember with similar levels of precision, often about scenes and faces spotted fleetingly.

When selective attention combines with fear, “you have a very strong memory for a few details,” said Elizabeth Phelps, a psychology professor at New York University. “Emotion gives us confidence more than it gives us accuracy.”

The problem comes when witnesses bring that certainty to the entire memory. In crimes that involve a weapon, Dr. Loftus and other scientists have found that witnesses will fixate on the gun barrel or knife blade but will fail to notice other details as clearly. Yet because they so starkly remember particulars of the weapon and may have the accuracy of parts of their memory affirmed by police officers and prosecutors, witnesses carry an air of assurance into the courtroom.

“Many people think if someone is confident, they must be right,” said Dr. Loftus.

Rather than discount witnesses, researchers are trying to use their findings to make trials fairer and testimony more reliable, particularly in the case of suspect lineups, a police staple at the heart of many wrong convictions. In September, Gary Wells, a psychology professor at Iowa State University, released a new report comparing whether the accuracy of lineups improves when the possible suspects are presented to witnesses in sequence, rather than all at once in the traditional lineup.

In studies involving actual cases, Dr. Wells’s team found that the likelihood of choosing a stand-in “filler” instead of the suspect fell to 12 percent, from 18 percent, when faces were presented sequentially. The downfall of side-by-side lineups, Dr. Wells said, is that “if the real perpetrator is not in there, there is still someone who looks more like him than the others.”

Lineups also may improve when some uncertainties are made clear to witnesses and jurors. Dr. Wells and others recommend changes like making sure a witness knows the perpetrator may not be in the group, and having lineups administered by someone who does not know which photograph is the suspect.

Dr. Wells also believes witnesses should give a statement at the time of the lineup documenting how confident they are in their choice — because once the trial comes around, the witnesses will believe they were always sure.

It may be that witnesses in police stations and courtrooms are being asked the wrong question to begin with — that telling witnesses to pick out a perpetrator, or state exactly what they saw or heard, implies they really can when science suggests that they may well be unable to do so.

“My view is that people should be asked to pick out someone who looks similar to who you saw, or sounds similar to what you heard, and leave it to the jury to decide,” said Donald Thomson, a psychology professor at Deakin University in Melbourne, Australia.

Pressing witnesses with questions that appear to have precise answers enhances the likelihood that the innocent will be prosecuted and the guilty will escape, Dr. Thomson said. “It forces people to pick someone and say, ‘This is the person,’ ” he said. “Two months down the track, they go into the witness box and say they are absolutely sure.”

“See No Evil: Eyewitness testimony may be unreliable, but the Supreme Court doesn’t want to be the one to say so.”

IMPORTANT article in Slate by Dahlia Lithwick:

A few weeks ago, testifying before the Senate Judiciary Committee, Justice Antonin Scalia reminded us that the Supreme Court doesn’t reach out to decide issues—it merely decides cases. The unreliability of eyewitness identifications is an issue. Perry v. New Hampshire is a case. And at oral argument this morning, it is immediately clear that this case is not only the wrong vehicle for solving the problem of mistaken eyewitness identifications, but that the Supreme Court believes itself the wrong institution to fix it. As Justice Elena Kagan puts it, new research “should lead us all to wonder about the reliability of eyewitness testimony.” Just don’t expect the high court to do much more than wonder.

Anyone who followed the Troy Davis case is aware of the enormity of the problem. A man went to the death chamber based largely on the eyewitness testimony of nine witnesses, although seven later recanted. Our entire criminal justice system is constructed around the proposition that our eyes don’t lie and our memories are infinitely looping YouTube videos. As Justice William Brennan wrote in <a title=”Watkins v. Sowders” href=”http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=449&invol=341#ff4&#8243; target=”_blank”>a 1981 dissent: “There is almost nothing more convincing than a live human being who takes the stand, points a finger at the defendant, and says, ‘That’s the one!’ ”

The problem, of course, is that you can be very convincing and also wrong.  In his book Convicting the Innocent(excerpted in Slate), Brandon Garrett studied 250 DNA-based innocent exonerations, and concluded that 190 of them (a whomping 76 percent) were based on false eyewitness identifications.  False identifications, then, aren’t so much a problem as a plague.

The high court used to worry a good deal about this. In 1977—the last time it examined the reliability of eyewitness identifications—it issued some fairly definitive, if upside-down, proclamations about what makes for good eyewitness evidence.  In Manson v. Brathwaite the court laid out specific criteria for determining the scientific reliability of an eyewitness ID—including how much opportunity the witness had to view the perpetrator and how certain she was of her identification.

Social science now suggests most of those conclusions were wrong.  As Adam Liptak recently explained: “There is no area in which social science research has done more to illuminate a legal issue. More than 2,000 studies on the topic have been published in professional journals in the past 30 years.” This morning’s case was meant to allow the law to catch up to the science.  That probably isn’t going to happen.

The case involves an alleged car break-in and a witness who offered the cops a less-than-satisfying identification—it was a “tall black man”—then voluntarily pointed to the suspect who was standing outside her apartment window with the police. (Later, at the police station, the witness was unable to identify the defendant from a photo lineup). But the police did nothing wrong or suggestive, which arguably makes the case different from all those 1970s precedents which sought to deter police misconduct. In Perry the question is whether, absent police manipulation, the defendant has a constitutional right not to have unreliable eyewitness evidence introduced at his trial.

New Hampshire public defender Richard Guerriero, representing Barion Perry, argues that this case turns on the inherent awfulness of eyewitness IDs and not on police misconduct. Nobody seems to be buying. Scalia isn’t just refusing to buy—he’s selling short: “Why is unreliable eyewitness identification any different from unreliable anything else?” he asks. If you’re going to constitutionalize the introduction of bad evidence, why draw the line at bad eyewitness IDs?

Guerriero replies that “eyewitness identification evidence is unique” and that the Supreme Court has identified it in the past as “probably the leading cause of miscarriages of justice.” Scalia disagrees. “If we accept your argument for eyewitness we should similarly accept it for everything else. There is nothing special about eyewitnesses.”

Justice Anthony Kennedy suggests that if the police did nothing wrong in this case, the proposed rule just makes their jobs harder. “I don’t know what you want the police to do,” he snaps. Both Chief Justice John Roberts and Kennedy take us on brief reminiscences of the good old days. “I remember in law school, one of the things in criminal law, the professor says, ‘All right, everybody be quiet,’ ” Roberts says. “And then a certain amount of time goes by and then he starts asking people, ‘Well, how much time went by?’ And people—some people say four minutes, some people say one minute. And it turns out, if I’m remembering correctly, to be a lot shorter than most people think.” The point being that people are as lousy at estimating time as they are at identifying criminals, but we don’t constitutionalize bad time evidence.

The other point is that justices like telling stories, and now it’s Kennedy’s turn. He tells of “a case I had where a prosecution witness was very, very certain, all too certain, and I said, ‘Do you ever take your wife out to dinner?’ And he said, ‘Oh, yes.’ I said, ‘Has it ever happened to you that midway in the meal you say, “Is that our waiter?” ’ And the waiter has brought you the menu, he has taken your order, he has brought your food, and you were under no stress at the time. … And there was good light?’ ” Kennedy then explains: “So you teach the jury this way. And you’re just—you’re just usurping the province of the jury, it seems.”

Justice Stephen Breyer jumps in to add that the federal rules of evidence already preclude judges from allowing in evidence that is more prejudicial than it is probative. “What is the difference between what you’re asking for and what already exists in the law?” Kagan worries that other classes of testimony are as unreliable as eyewitness evidence. “Let’s say that it turned out study after study after study [showed] that jailhouse informants lie,” she says. “And so the testimony of jailhouse informants is likely to be just completely unreliable, double as much as eyewitness testimony. Same rule for that?”

Justice Ruth Bader Ginsburg asks why all the myriad safeguards against admitting bad evidence—jury instructions, evidentiary rules, and cross examination—are not enough to keep it from being used at a trail. When Guerriero sits down, he looks a bit like he’s just been the victim of a mugging. And he can’t quite identify his assailant.

New Hampshire’s attorney general, Michael A. Delaney, spends his time explaining that unless the police manipulated the eyewitness testimony, there can be no due process violation. Justice Sonia Sotomayor says she’s not inclined to create a test that looks at the police officer’s intentions. Explains Delaney: “The standard is not reliability. The standard for due process is the use of orchestrated police suggestion.” In his view, without the latter, there can be no constitutional wrong.

Then Nicole A. Saharsky has 10 minutes to argue for the Justice Department, which sides with New Hampshire. Her delivery is a strangely effective mix of high-speed assertions, but her point is that without police wrongdoing, there is no claim: “The State can’t create a false document and introduce it at trial,” she explains, and “it can’t manipulate someone’s memory and then use that evidence to prove guilt at trial.”

Kagan asks about a hypothetical case in which an identification “has been produced by torture, but the torture has been through a nonstate actor.” Does the introduction of such evidence violate the Constitution? Saharsky replies that prosecutors wouldn’t ever introduce such evidence and systemic checks could keep it out, but suggests that the Constitution wouldn’t prevent its introduction.  She explains that “there are numerous trial protections outside of the constitutional limits” that bar bad eyewitness identification testimony, including special jury instructions. But, as she explains: “The Constitution has enshrined the jury as the fundamental guarantee—the fundamental protector of liberty,” and taking reliability questions away from the jury would be improper. She concludes that a constitutional rule about the admissibility of unreliable evidence would mean that “defendants throughout the United States (will be) making arguments about all different kinds of evidence not involving the police being unreliable,” opening the floodgates to claims that all evidence is as tainted as eyewitness testimony.

In his rebuttal, Guerriero tries to explain again that the reason you want to take fallible eyewitness identifications away from the jury is precisely because eyewitness testimony is both powerful and wrong: “The witness’s sincerity has a powerful effect on the jury,” he explains. But it’s clear that this court will either dismiss or slide right past the old precedents that suggest that eyewitness evidence is uniquely dangerous. Oddly enough, the fact that other compelling evidence may prove equally untrustworthy seems to have immunized all the bad eyewitness evidence.

Meanwhile, police forces are already dealing with the issue raised by the Perry case, as are some state courts. Just recently, a special master appointed by the New Jersey Supreme Court to examine eyewitness evidence concluded that such memory should be treated “as a form of trace evidence: a fragment collected at the scene of a crime, like a fingerprint or blood smear, whose integrity and reliability need to be monitored and assessed from the point of its recovery to its ultimate presentation at trial.”

So maybe one day the worst procedures that produce bad eyewitness IDs will finally be eradicated. If that happens, it will be because of the efforts of virtually every institution in the U.S. criminal justice system—except the Supreme Court, which will still be wondering.

WELCOME TO EYEWITNESS INJUSTICE

Mission Statement

Eyewitness Injustice was founded in 2011  to serve as a leading source of multimedia information about the fallibility of eyewitness identification. Since the most common element in all wrongful convictions later overturned by DNA evidence is eyewitness misidentification, Eyewitness Injustice is dedicated to addressing the causes of eyewitness error. Working in conjunction with  The Innocence Project and scientific researchers, Eyewitness Injustice strives to raise awareness about the need for eyewitness identification reform, and how to support policies and procedures that protect the innocent.