Unfair (50 page)

Their hypothesis was that people:
Ariely,
The (Honest) Truth About Dishonesty
, 172.

Sure enough, in their experiments:
Francesca Gino and Dan Ariely, “The Dark Side of Creativity: Original Thinkers Can Be More Dishonest,”
Journal of Personality and Social Psychology
102 (2011): 449, doi: 10.1037/a0026406; Ariely,
The (Honest) Truth About Dishonesty
, 176.

Moreover, the researchers found that:
Ariely,
The (Honest) Truth About Dishonesty
, 184–85; Gino and Ariely, “The Dark Side of Creativity,” 450–51.

Interestingly, general intelligence doesn't appear:
Ariely,
The (Honest) Truth About Dishonesty
, 176.

And with frequently vague:
Ariely,
The (Honest) Truth About Dishonesty
, 172.

Almost all of the most common:
Dan Simon,
In Doubt: The Psychology of the Criminal Justice System
(Cambridge, MA: Harvard University Press, 2012), 231–32 n. 39.

It made a difference that Deegan:
Connick
, 131 S. Ct. at 1356.

It also mattered that the blood:
Connick
, 131 S. Ct. at 1356.

We should worry, then:
Possley and Armstrong, “The Flip Side of a Fair Trial.”

In addition, research suggests that:
Gino et al., “Unable to Resist Temptation,” 192.

According to some psychologists:
Ariely,
The (Honest) Truth About Dishonesty
, 101; Isaiah M. Zimmerman, “Stress and the Trial Lawyer,”
Litigation
9 (1983): 37. For an overview of the more general research on “ego depletion,” see Steven Pinker, “The Sugary Secret of Self-Control,” review of
Willpower: Rediscovering the Greatest Human Strength
, by Roy F. Baumeister and John Tierney,
New York Times
, September 2, 2011,
http://www.nytimes.com/​2011/09/04/books​/review/willpower-by-roy-f-baumeister-and-johntierney-book-review​.html?pagewanted=all
; John Tierney, “Be It Resolved,”
New York Times
, January 5, 2012,
http://www.nytimes.com/​2012/01/08/sunday-review​/new-years-resolutions-stick-when-willpower-is-reinforced​.html?pagewanted=all&_r=0
. Outside of the dishonesty context, this depletion account of self-control is controversial and some researchers have offered evidence that contests it. See, e.g., Xiaomeng Xu et al., “Failure to Replicate Depletion of Self-Control,”
PLOS ONE
9, no. 10 (2014): 1.

But he may face other stresses:
Zimmerman, “Stress and the Trial Lawyer,” 37.

Figuring out how to please:
Worse still, researchers have documented that the very act of refraining from engaging in unethical behavior may itself deplete self-regulatory resources—making even the most ethical of us more likely to subsequently engage in dishonest action. Ariely,
The (Honest) Truth About Dishonesty
, 101.

Given the likely frequency:
Brandon Garrett,
Convicting the Innocent: Where Criminal Prosecutions Go Wrong
(Cambridge, MA: Harvard University Press, 2011), 168; Adam Liptak, “THE NATION; Prosecutor Becomes Prosecuted,”
New York Times
, June 24, 2007,
http://query.nytimes.com/​gst/fullpage.html?res​=9900E1DC1E3FF937A15755C0A9619C8B63#h
; Bazelon, “Playing Dirty in the Big Easy.”

Many of the cases over:
Simon,
In Doubt
, 231–32 n. 39. Out of the first seventy-four exoneration cases involving DNA, there were thirty-three instances of prosecutorial misconduct. Simon,
In Doubt
, 231–32 n. 39.

Concealing evidence, one of the most:
Garrett,
Convicting the Innocent
, 168.

Deegan eventually came to:
Zoë Chance et al., “Temporal View of the Costs and Benefits of Self-Deception,”
Proceedings of the National Academy of Sciences
108 (2011): 15657.

In one set of experiments:
Chance, “Temporal View,” 15657.

Winning effectively wipes:
Ariely,
The (Honest) Truth About Dishonesty
, 154.

Our moral flexibility:
Novotney, “Beat the Cheat,” 54.

Research suggests that the more:
Novotney, “Beat the Cheat,” 54.

In one notorious example:
Possley and Armstrong, “The Flip Side of a Fair Trial.”

Growing experimental evidence suggests:
Ariely,
The (Honest) Truth About Dishonesty
, 224, 227. The social aspects of dishonesty are so potent that only certain monitoring approaches appear to be effective. Ariely,
The (Honest) Truth About Dishonesty
, 231. In particular, the most promising approach is likely to be continual external reviews of district attorneys' offices. For the best results, these monitors should be outsiders (experiments suggest that monitors with whom we are friendly are significantly less effective). Ariely,
The (Honest) Truth About Dishonesty
, 231–34. But they may not actually need to do much intervention, as long as prosecutors believe their work is being monitored. Ariely,
The (Honest) Truth About Dishonesty
, 231–34.

We know such a cultural shift:
Innocence Project, “Conviction Integrity Unit Reviews Possible Wrongful Convictions,”
Innocence Blog
, March 26, 2013,
http://www.innocenceproject.org/​Content/Conviction_Integrity​_Unit_Reviews_Possible_Wrongful_Convictions.php
;
Dallas County District Attorney's Office, “Conviction Integrity Unit,” accessed April 26, 2014,
http://www.dallasda.com/​division/conviction​-integrity-unit/
.

In 2006, Dallas County District Attorney:
Michael McLaughlin, “National Registry of Exonerations: More Than 2,000 People Freed After Wrongful Convictions,” last modified May 22, 2012,
http://www.huffingtonpost.com/​2012/05/21/​national-registry-of-exonerations_n_​1534030.html
; Terri Moore, “Prosecutors Reinvestigate Questionable Evidence: Dallas Establishes ‘Conviction Integrity Unit,' ”
Criminal Justice
26 (2011): 1,
http://www.americanbar.org/​content/dam/​aba/publications/criminal_justice_magazine/fa11_Moore.authcheckdam.pdf
.

Watkins argued that prosecutors:
Innocence Project, “The Exonerator,”
Innocence Blog
, November 17, 2008,
http://www.innocenceproject.org/​Content/​The_Exonerator.php
.

The initiative has been:
Elizabeth Barber, “Dallas Targets Wrongful Convictions, and Revolution Starts to Spread,”
Christian Science Monitor
, May 25, 2014,
http://www.csmonitor.com/​USA/Justice/​2014/0525/​Dallas-targets-wrongful-convictions-and-revolution-starts-to-spread
.

Its accomplishments have prompted:
Florida Innocence Project, “Conviction Integrity Units: Righting the Wrongs Or a Waste of Time?,”
Plain Error
, September 18, 2012,
http://floridainnocence.org/​content/?tag​=conviction-integrity-units
; Innocence Project, “Conviction Integrity Unit Reviews Possible Wrongful Convictions”; Innocence Project, “Conviction Integrity Unit to Review 50 Brooklyn Murder Cases,”
Innocence Blog
, May 13, 2013,
http://www.innocenceproject.org/​Content/Conviction_Integrity_Unit_to_​Review_50_Brooklyn_Murder_Cases.php
.

For instance, asking individuals:
Mazar and Ariely, “Dishonesty in Everyday Life,” 9.

More astonishing, the benefits:
Ariely,
The (Honest) Truth About Dishonesty
, 42–43.

MIT, for instance, doesn't:
Ariely,
The (Honest) Truth About Dishonesty
, 42.

This research suggests that we ought:
Ariely,
The (Honest) Truth About Dishonesty
, 253, 52.

One idea might be:
Ariely,
The (Honest) Truth About Dishonesty
, 250.

Likewise, to encourage attorneys to turn:
Ariely,
The (Honest) Truth About Dishonesty
, 44.

Look again at the miracles:
John Hollway and Ronald M. Gauthier,
Killing Time: An
18
-Year Odyssey from Death Row to Freedom
(New York: Skyhorse Publishing, 2010), 108–116, 140, 247.

Deputy Clinton Reynolds was sitting:
Scott v. Harris, 550 U.S. 372 (2007); Brief for Respondent at 3, Scott v. Harris, 550 U.S. 372 (2007) (No. 05-1631). This chapter draws on ideas explored in more detail in Adam Benforado, “Frames of Injustice: The Bias We Overlook,”
Indiana Law Journal
85 (2010).

A Cadillac came up:
Scott
, 550 U.S. at 374.

He wasn't even going to:
Brief for Respondent at 4,
Scott
(No. 05-1631).

But the Cadillac didn't slow:
Scott
, 550 U.S. at 374–75; Brief for Respondent at 4,
Scott
(No. 05-1631).

Reynolds radioed in the license plate:
Scott
, 550 U.S. at 375.

He didn't request assistance:
Scott
, 550 U.S. at 375.

When the Cadillac turned:
“Why I ran,” YouTube video, 9:38, posted by “vic2k3,” December 8, 2009,
http://www.youtube.com/​watch​?v=JATVLUOjzvM&feature=related
.

He thought he'd boxed the driver:
Scott
, 550 U.S. at 375; Brief for Respondent at 9,
Scott
(No. 05-1631).

Rejoining the chase:
Scott
, 550 U.S. at 375; Brief for Respondent at 7,
Scott
(No. 05-1631). 92 The six-minute pursuit had covered:
Scott
, 550 U.S. at 375.

He radioed in for permission:
Scott
, 550 U.S. at 375.

A Precision Intervention Technique:
Scott
, 550 U.S. at 375.

And though it's known to be:
Scott
, 550 U.S. at 375.

The cars had reached a narrow stretch:
Brief for Respondent at 9,
Scott
(No. 05-1631).

He hit the gas:
“Police Chase—Scott v. Harris,” YouTube video, 6:00, posted by “Donald Braman,” July 19, 2007,
http://www.youtube.com/​watch?v=DBY2y2YsmN0
.

The result was dramatic:
YouTube, “Police Chase—Scott v. Harris.”

Scott yelled into his radio:
YouTube, “Why I ran.”

White smoke poured:
YouTube, “Police Chase—Scott v. Harris.”

The officers ran down:
YouTube, “Police Chase—Scott v. Harris.”

Scott looked through the window:
YouTube, “Why I ran.”

One of the officers said what:
YouTube, “Police Chase—Scott v. Harris.”

Victor Harris, nineteen:
YouTube, “Why I ran.”

But the cost of the accident:
YouTube, “Why I ran.” Note that Victor does not appear to have complete paralysis in his arms.

Taking stock of the events:
Scott
, 550 U.S. at 375–76.

Victor's argument was that:
Scott
, 550 U.S. at 382–83.

Perhaps chief among them:
Scott
, 550 U.S. at 381, 383.

But in 2001, Coweta County:
Sean Alfano, “Court Sides with Cops on High-Speed Chase,” CBS News, April 30, 2007,
http://www.cbsnews.com/​stories/​2007/04/30/​supremecourt/main2743124.shtml
.

To determine whether Victor created:
Scott
, 550 U.S. at 386.

As Justice Scalia explained:
Oral Argument Transcript at 24,
Scott
(No. 05-1631).

The Supreme Court majority found:
Scott
, 550 U.S. at 378–81.

According to the Court, after watching:
Scott
, 550 U.S. at 395.

As Justice Scalia wrote:
Scott
, 550 U.S. at 380–81.

The Court was so sure of itself:
Scott
, 550 U.S. at 378.

Each of us believes that we see:
Lee Ross and Andrew Ward, “Naïve Realism in Everyday Life: Implications for Social Conflict and Misunderstanding,” in
Values and Knowledge
, eds. Edward S. Reed, Elliot Turiel, and Terrance Brown (Mahwah, NJ: Lawrence Erlbaum, 1996): 110.

When we watch a video:
Ross and Ward, “Naïve Realism.”

When we come across those:
Ross and Ward, “Naïve Realism.”

One option would be to reassess:
Ross and Ward, “Naïve Realism.”

Rather, we look to dismiss:
Ross and Ward, “Naïve Realism.”

Those with conflicting viewpoints:
Ross and Ward, “Naïve Realism.”

Rather, they reflect the realities:
Dan M. Kahan, “Culture, Cognition, and Consent: Who Perceives What, and Why, in Acquaintance-Rape Cases,”
University of Pennsylvania Law Review
158 (2010): 755–56.

At any given moment:
Dan M. Kahan, David A. Hoffman, and Donald Braman, “Whose Eyes Are You Going to Believe?
Scott v. Harris
and the Perils of Cognitive Illiberalism,”
Harvard Law Review
122 (2009): 872–79.

In a powerful demonstration of this:
Scott
, 550 U.S. at 380–81, 395; Kahan, Hoffman, and Braman, “Whose Eyes?,” 841.

Did “the videotape…speak for itself”:
Kahan, Hoffman, and Braman, “Whose Eyes?,” 841.

The researchers asked a diverse group:
Kahan, Hoffman, and Braman, “Whose Eyes?,” 841.

What they found were clear rifts:
Kahan, Hoffman, and Braman, “Whose Eyes?,” 872–79.

A less affluent, liberal, highly educated:
Kahan, Hoffman, and Braman, “Whose Eyes?,” 879. The researchers found that characteristics such as race, gender, wealth, politicial orientation, and place of residence were each linked to people's perceptions of the tape. Kahan, Hoffman, and Braman, “Whose Eyes?,” 870. But they also found that combinations of these characteristics mattered. Kahan, Hoffman, and Braman, “Whose Eyes?,” 870–79.

And the fact that the true source:
Kahan, Hoffman, and Braman, “Whose Eyes?,” 838.

As the research team pointed out:
Kahan, Hoffman, and Braman, “Whose Eyes?,” 838, 887.

According to the Supreme Court:
Kahan, Hoffman, and Braman, “Whose Eyes?,” 842.

As jurors, we are often oblivious:
Kahan, Hoffman, and Braman, “Whose Eyes?,” 885–90.

In the play (and 1957 film):
Reginald Rose, 12
Angry Men
, directed by Sidney Lumet (Beverly Hills, CA: Metro-Goldwyn-Mayer, 1957), 96 min.

“Most of 'em,” he explains:
Rose, 12
Angry Men
.

And, yet, after saying many:
Rose, 12
Angry Men
.

In
12
Angry Men
,
Juror #8:
Rose, 12
Angry Men
.

Recent research suggests as much:
Brian H. Bornstein and Edie Greene, “Jury Decision Making: Implications For and From Psychology,”
Current Directions in Psychological Science
20, no. 1 (2011): 65, doi: 10.1177/0963721410397282.

When O.J. Simpson was acquitted:
Jewelle Taylor Gibbs,
Race and Justice: Rodney King and O.J. Simpson in a House Divided
(San Francisco: Jossey-Bass, 1996), 140–41, 149, 217–24.

Well, nine out of the twelve:
Gibbs,
Race and Justice
, 218–19.

Or maybe it had to do with intelligence:
Gibbs,
Race and Justice
, 219–20; Timothy Egan, “Not Guilty: The Jury,”
New York Times
, October 4, 1995,
http://www.nytimes.com/​1995/10/04/us​/not-guilty-the-jury-one-juror-smiled-then-they-knew.html
.

As Justice Scalia explained:
Scott
, 550 U.S. at 381.

And the dawn of the “video age”:
The desire for “clear and indisputable records” was one of the motivations for a 2014 policy directive from the U.S. Department of Justice requiring federal law enforcement agencies to begin videotaping most interviews with suspects. Michael S. Schmidt, “In Policy Change, Justice Dept. to Require Recordings of Interrogations,”
New York Times
, May 22, 2014,
http://www.nytimes.com/​2014/05​/23/us/politics/justice-dept​-to-reverse-ban-on-recording-interrogations.html?_r=0
.

Even Marge Simpson has weighed in:
“Homer Badman,”
The Simpsons
, season 6, episode 112, directed by David Mirkin (Los Angeles, CA: Fox), aired November 27, 1994.

But all of our seemingly neutral:
Benforado, “Frames of Injustice,” 1347–51.

Over the last few decades:
See, e.g., Michael D. Storms, “Videotape and the Attribution Process: Reversing Actors' and Observers' Points of View,”
Journal of Personality and Social Psychology
27 (1973): 165–75; G. Daniel Lassiter, “Videotaped Confessions: The Impact of Camera Point of View on Judgments of Coercion,”
Journal of Applied Sociology
3 (1986): 268–76; G. Daniel Lassiter et al., “Videotaped Interrogations and Confessions: A Simple Change in Camera Perspective Alters Verdicts in Simulated Trials,”
Journal of Applied Psychology
87 (2002): 868–74; G. Lassiter, “Illusory Causation in the Courtroom,”
Current Directions in Psychological Science
11 (2002): 204–08; Jennifer J. Ratcliff et al., “Camera Perspective Bias in Videotaped Confessions: Experimental Evidence of Its Perceptual Basis,”
Journal of Experimental Psychology
12 (2006): 197–206; G. Daniel Lassiter et al., “Evaluating Videotaped Confessions: Expertise Provides No Defense Against the Camera Perspective Effect,”
Psychological Science
18 (2007): 224–26; G. Daniel Lassiter and Andrew L. Geers, “Bias and Accuracy in the Evaluation of Confession Evidence,” in
Interrogations, Confessions, and Entrapment
, ed. G. Daniel Lassiter (New York: Spring, 2004): 197–214; G. Daniel Lassiter et al., “Videotaped Confessions: Is Guilt in the Eye of the Camera?,”
Advances in Experimental Social Psychology
33 (2001): 189–254.

When we view events as if standing:
Lassiter et al., “Videotaped Confessions: Is Guilt in the Eye of the Camera?,” 197. The source of the difference in attributions between actors and observers appears to be the different elements that draw our attention when we view events from these two perspectives. Emily Pronin and Lee Ross, “Temporal Differences in Trait Self-Ascription: When the Self Is Seen as an Other,”
Journal of Personality and Social Psychology
90 (2006): 197. We tend to give unwarranted weight to the factors that are more salient to us. Lassiter, “Illusory Causation,” 204.

Imagine that you are impaneled:
Ratcliff et al., “Camera Perspective Bias,” 197; Lassiter, “Videotaped Confessions: The Impact of Camera Point of View on Judgments of Coercion,” 268.

As luck would have it:
Lassiter, “Videotaped Confessions: The Impact of Camera Point of View on Judgments of Coercion,” 268.

When scientists conducted a number:
Ratcliff et al., “Camera Perspective Bias,” 197; Lassiter, “Videotaped Confessions: The Impact of Camera Point of View on Judgments of Coercion,” 268.

By simply shifting the point:
Lassiter, “Videotaped Confessions: The Impact of Camera Point of View on Judgments of Coercion,” 268.

Watching the interrogator through the eyes:
Lassiter, “Videotaped Confessions: The Impact of Camera Point of View on Judgments of Coercion,” 268.

Those who watched the videotape:
Lassiter, “Videotaped Confessions: The Impact of Camera Point of View on Judgments of Coercion,” 268. Reading a traditional transcript of the interrogation, without seeing any video footage, led to voluntariness judgments that were closest to assessments made by those who viewed the interrogation from the perspective of the suspect. Lassiter et al., “Videotaped Interrogations and Confessions,” 868.

Camera perspective bias can also influence:
Lassiter, “Illusory Causation,” 206; Ratcliff et al., “Camera Perspective Bias,” 197.

In one experiment, moving from:
Lassiter, “Illusory Causation,” 206.

What's more, the bias seems to occur:
Lassiter, “Illusory Causation,” 206.

And it's surprisingly sticky:
See, e.g., Lassiter et al., “Evaluating Videotaped Confessions,” 224–25; Lassiter and Geers, “Bias and Accuracy,” 207; G. Daniel Lassiter et al.,
“Accountability and the Camera Perspective Bias in Videotaped Confessions,”
Analysis of Sociological Issues and Public Policy
1 (2001): 53, 63; Ratcliff et al., “Camera Perspective Bias,” 203; Lassiter, “Illusory Causation,” 206.

Justice Scalia thought:
Scott
, 550 U.S. at 378.

But it didn't just record:
Benforado, “Frames of Injustice,” 1353; Kahan, Hoffman, and Braman, “Whose Eyes?,” 855.