Unfair (54 page)

In one study, when an experimenter:
Daniel J. Gurney, Karen J. Pine, and Richard Wiseman, “The Gestural Misinformation Effect: Skewing Eyewitness Testimony Through Gesture,”
American Journal of Psychology
126 (2013): 305.

Interviews are especially fraught:
Ronald Fisher, Rebecca Milne, and Ray Bull, “Interviewing Cooperative Witnesses,”
Current Directions in Psychological Science
(2011): 16; Simon,
In Doubt
, 112.

Since most officers have very little:
Fisher, Milne, and Bull, “Interviewing Cooperative Witnesses,” 16; Simon,
In Doubt
, 112.

Among other things, they fail:
Fisher, Milne, and Bull, “Interviewing Cooperative Witnesses,” 16; Simon,
In Doubt
, 112.

When they reach a dead end:
Simon,
In Doubt
, 94.

This may be effective on occasion:
Simon,
In Doubt
, 94, 114.

And the more that detectives repeat:
Simon,
In Doubt
, 113.

However, research suggests that most judges:
Simon,
In Doubt
, 55.

And they are often oblivious:
Simon,
In Doubt
, 151–52.

Compounding the problem is that:
Simon,
In Doubt
, 152.

For instance, jurors are two to three:
Simon,
In Doubt
, 115, 153; Kevin Krug, “The Relationship Between Confidence and Accuracy: Current Thoughts of the Literature and a New Area of Research,”
Applied Psychology in Criminal Justice
3 (2007): 7–8.

When a woman like the victim:
Garrett,
Convicting the Innocent
, 66.

Jurors appear to be particularly impressed:
Simon,
In Doubt
, 154.

Yet these identifications might:
Simon,
In Doubt
, 155.

They believe that standard legal tools:
Garrett, “Introduction,” 682.

In his 1908 book
,
On the Witness Stand
:
Hugo Münsterberg,
On the Witness Stand: Essays in Psychology and Crime
(New York: Doubleday, Page, 1908), 51.

All of a sudden:
Münsterberg,
On the Witness Stand
, 51.

The men shouted at each other:
Münsterberg,
On the Witness Stand
, 52.

A few moments later:
Münsterberg,
On the Witness Stand
, 52.

Given that a criminal investigation was:
Münsterberg,
On the Witness Stand
, 52.

Unbeknownst to them, the entire:
Münsterberg,
On the Witness Stand
, 52.

The results were disheartening:
Münsterberg,
On the Witness Stand
, 52–53.

According to Münsterberg, when:
Münsterberg,
On the Witness Stand
, 31.

Indeed, “in a thousand courts”:
Münsterberg,
On the Witness Stand
, 43.

In the direct aftermath:
Downey, “Sharper Eyewitnessing”; Rankin, “Innocent Man's Conviction.”

But other than the creation:
“Editorial: Georgia Should Have Eyewitness ID Protocol,”
Athens Banner Herald
, September 23, 2011,
http://onlineathens.com/​stories/092311​/opi_889162565.shtml
; Garrett, “Introduction,” 673.

In the vast majority of jurisdictions:
Garrett, “Introduction,” 675, 680–82.

Of course
,
some
progress:
“Hugo Münsterberg,” accessed May 18, 2014,
http://www.famouspsychologists.org/​hugo-munsterberg/
.

In the last thirty years:
Liptak, “34 Years Later, Supreme Court Will Revisit Eyewitness IDs.”

As Münsterberg put it:
Münsterberg,
On the Witness Stand
, 11.

As I mentioned, studies:
Garrett, “Introduction,” 683.

In almost half of those cases:
Innocence Project,
Reevaluating Lineups
.

As a spokesman for the Georgia Bureau:
Rankin, “Innocent Man's Conviction.”

In 2001 the attorney general:
Opfer, “The Problem with Police Line-Ups”; Erica Goode and John Schwartz, “Police Lineups Start to Face Fact: Eyes Can Lie,”
New York Times
, August 28, 2011,
http://www.nytimes.com/​2011/08/​29/us/29witness.html?hp
; State of New Jersey, Office of the Attorney General, “Attorney General Guidelines for Preparing and Conducting Photo and Live Lineup Identification Procedures,” April 18, 2001,
http://www.innocenceproject.org/​docs/NJ_​eyewitness.pdf
.

The police are also instructed:
State of New Jersey, Office of the Attorney General, “Attorney General Guidelines for Preparing and Conducting Photo and Live Lineup Identification Procedures,” April 18, 2001,
http://www.innocenceproject.org/​docs/NJ_​eyewitness.pdf
; Goode, “Police Lineups Start to Face Fact.”

Writing of the “troubling lack”:
State v. Henderson, 27 A.3d 872, 218 (N.J. 2011); Garrett, “Introduction,” 680.

Even when disputed evidence:
Benjamin Weiser, “In New Jersey, Rules Are Changed on Witness IDs,”
New York Times
, August 24, 2011,
http://www.nytimes.com/​2011/08/25/nyregion/​in-new-jersey-rules-changed-on-witness-ids.html?_r=2&hp
.

Reformers hope that New Jersey:
Goode and Schwartz, “Police Lineups Start to Face Fact.”

One of the best existing tools:
Fisher, Milne, and Bull, “Interviewing Cooperative Witnesses,” 16, 18; Frenda, Nichols, and Loftus, “Current Issues and Advances in Misinformation Research,” 22.

Based on insights:
Fisher, Milne, and Bull, “Interviewing Cooperative Witnesses,” 16–17; Frenda, Nichols, and Loftus, “Current Issues and Advances in Misinformation Research,” 22.

Studies have documented that:
Fisher, Milne, and Bull, “Interviewing Cooperative Witnesses,” 17.

In revolutionizing our eyewitness system, we should also support the development of new investigative methods. There are many promising avenues on the horizon, from improving recall of memory details by employing eye-closure or using timelines to improving identification
accuracy by forcing witnesses to make decisions quickly but permitting less precision. Annelies Vredeveldt and Steven D. Penrod, “Eye-closure Improves Memory for a Witnessed Event Under Naturalistic Conditions,”
Psychology, Crime and Law
1 (2012): 1; “Witnesses Given New Tool to Fight Gang Crime,” UoP News, March 19, 2013, accessed May 21, 2014,
http://www.port.ac.uk/​uopnews/2013/03/19/​witnesses-given-new-tool-to-fight-gang-crime/
; Association for Psychological Science, “Having to Make Quick Decisions Helps Witnesses Identify the Bad Guy in a Lineup,” August 28, 2012,
http://ow.ly/​djveA
; Association for Psychological Science, “Unusual Suspects: How to Make Witnesses More Reliable,” March 5, 2012,
http://www.psychologicalscience.​org/​index.php/news/​unusual-suspects-how-to-make-witnesses-more-reliable.html#hide
.

One of the reasons that:
Fisher, Milne, and Bull, “Interviewing Cooperative Witnesses,” 16; Frenda, Nichols, and Loftus, “Current Issues and Advances in Misinformation Research,” 22.

The benefits of that approach suggest:
Others have made similar suggestions. Liptak, “34 Years Later, Supreme Court Will Revisit Eyewitness IDs”; Simon,
In Doubt
, 81.

As Hugo Münsterberg argued:
Münsterberg,
On the Witness Stand
, 44–45.

Münsterberg thought that the path:
Münsterberg,
On the Witness Stand
, 44–45, 194. According to Münsterberg, we need to admit what we don't know and seek help: “No juryman would be expected to follow his general impressions in the question as to whether the blood on the murderer's shirt is human or animal. But he is expected to make up his mind as to whether the memory ideas of a witness are objective reproductions of earlier experience or are mixed up with associations and suggestions.” Münsterberg,
On the Witness Stand
, 45.

Woken up by the drumbeat:
Seth Mydans, Richard W. Stevenson, and Timothy Egan, “Seven Minutes in Los Angeles,”
New York Times
, March 18, 1991,
http://www.nytimes.com​/1991/03/18/us/​seven-minutes-​los-angeles-special-​report-videotaped-beating-officers-puts-full.html​?module=Search&mabReward=relbias:r,{%221=%22:=%22RI:5=%22}=&pagewanted=1
;
The “Rodney King” Case:
What the Jury Saw in
California v. Powell, directed by Dominic Palumbo (New York: Courtroom Television Network, 1992), videocassette (VHS), 116 min.

Though it was almost one:
Mydans, Stevenson, and Egan, “Seven Minutes in Los Angeles.”

In the first seconds:
Mydans, Stevenson, and Egan, “Seven Minutes in Los Angeles.”

He's got Taser darts:
Mydans, Stevenson, and Egan, “Seven Minutes in Los Angeles.”

Over the next minute and a half:
Mydans, Stevenson, and Egan, “Seven Minutes in Los Angeles.”

He falls and they kick him:
Mydans, Stevenson, and Egan, “Seven Minutes in Los Angeles.”

He rolls on the ground:
The “Rodney King” Case
; Mydans, Stevenson, and Egan, “Seven Minutes in Los Angeles.”

They drag him:
Mydans, Stevenson, and Egan, “Seven Minutes in Los Angeles.”

He suffered a concussion:
Mydans, Stevenson, and Egan, “Seven Minutes in Los Angeles.”

The officers claimed that:
Lou Cannon, “Prosecution Rests Case in Rodney King Beating Trial,”
Washington Post
, March 16, 1993,
http://tech.mit​.edu/​V113/N14/king.14w.html
.

And though it was speeding:
Mydans, Stevenson, and Egan, “Seven Minutes in Los Angeles.” Drunk and on parole for a robbery conviction, King had sped by a cop at around 100 miles per hour and then led LAPD officers on an eight-mile chase. Koon v. United States, 518 U.S. 81, 86 (1996). When he had finally pulled over, he hadn't complied with the police orders; unlike the two other passengers in the car who lay down on their stomachs with their arms behind their backs, he had resisted.
Koon
, 518 U.S. at 86.

The tape was played over:
Michael Goldstein, “The Other Beating,”
Los Angeles Times
, February 19, 2006,
http://articles.latimes.com/​2006/feb/19/magazine/tm-holiday8
.

And before the trial:
Douglas Linder, “The Rodney King Beating Trials,”
Jurist
, December 2001,
http://jurist.law​.pitt.edu/​famoustrials/king.php
.

The details that emerged:
Mydans, Stevenson, and Egan, “Seven Minutes in Los Angeles.”

Earlier in the night:
Associated Press, “Judge Says Remarks on ‘Gorillas' may be Cited in Trial on Beating,”
New York Times
, June 12, 1991,
http://www.nytimes.com/​1991/06/12/us​/judge-says-remarks-on-gorillas-may-be-cited-in-trial-on-beating.html
.

And after nearly killing King:
Linder, “The Rodney King Beating.”

In the hospital emergency room:
Richard A. Serrano, “LAPD Officers Reportedly Taunted King in Hospital,”
Los Angeles Times
, March 23, 1991,
http://articles.latimes.com/​1991-03-23/news​/mn-433_1_grand-jury
.

According to Tom Bradley:
Mydans, Stevenson, and Egan, “Seven Minutes in Los Angeles.”

President George Bush, whose law-and-order:
Andrew Rosenthal, “Bush Calls Police Beating ‘Sickening,' ”
New York Times
, March 22, 1991,
http://www.nytimes.com/​1991/03/22/us/bush-calls-police​-beating-sickening.html​?module=Search&mabReward=relbias%3Ar%2C%7B%221%22%3A%22RI%3A5%22%7D
. Bill Clinton, who would be elected president in the fall, remarked, “Like most of America I saw the tape of the beatings several times, and it certainly looks excessive to me….” Seth Mydans, “The Police Verdict,”
New York Times
, April 30, 1992,
http://www.nytimes.com/​learning/general/onthisday​/big/0429.html?module=Search​&mabReward=relbias%​3Ar%2C%7B%221%22%3A%22RI%3A5%22%7D#article
.

The evidence was so clear:
Rosenthal, “Bush Calls Police Beating ‘Sickening.' ”

Police departments around the country:
Seth Mydans, “Los Angeles Policemen Acquitted in Taped Beating,”
New York Times
, April 30, 1992,
http://www.nytimes.com/​learning/general/​onthisday/big/0429.​html?module=Search&mabReward=​relbias%3Ar%​2C%7B%221%22%​3A%22RI%3A5%22%7D#article
.

And Darryl F. Gates, the police chief:
Mydans, “Los Angeles Policemen Acquitted.”

On April 29, 1992, all four:
Mydans, “The Police Verdict.”

Stores were looted:
Mydans, “The Police Verdict.”

More than fifty people would die:
Goldstein, “The Other Beating”; “Los Angeles Riots Fast Facts,”
CNN.com
, last modified May 3, 2014,
http://www.cnn.com/​2013/09/18/us/​los-angeles-riots-fast-facts/
.

The acquittals that set off:
Linder, “The Rodney King Beating Trials”;
The “Rodney King” Case
.

The removal of the case:
David Margolick, “As Venues Are Changed, Many Ask How Important a Role Race Should Play,”
New York Times
, May 23, 1992,
http://www.nytimes.com/​1992/05/23/us/​as-venues-are​-changed-many-ask-how-important-a-role-race-should​-play.html?module=Search&​mabReward=relbias:​r,{%221=%22:=%22RI:7=%22}=&pagewanted=1
.

The real reason that Koon:
Goldstein, “The Other Beating.”

They watched Koon on the stand:
The Rodney King Incident: Race and Justice in America
, directed by Michael Pack (Princeton, NJ: Films for the Humanities and Sciences, 1998), videocassette (VHS), 56 min.

They looked at his relaxed body:
The Rodney King Incident
.

They listened to his measured voice:
The Rodney King Incident
.

They watched how he'd look:
The Rodney King Incident
.

They met his gaze:
The Rodney King Incident
; Christine Pelisek, “L.A. Riots Anniversary: Stacey Koon's Disturbing Testimony,”
Daily Beast
, April 28, 2012,
http://www.thedailybeast.com/​articles/​2012/04/28/​l-a-riots-anniversary-stacey-koon​-s-disturbing-testimony.html
. Here, the defense attorney Darryl Mounger had asked Koon why King had been beaten so violently. Koon was quite forthright that it was a violent and brutal beating, but emphasized that it was necessary to “control an aggressive combative suspect.” Pelisek, “L.A. Riots Anniversary.”

They took it all in:
The Rodney King Incident
.

Likewise, the jury ate up:
Bill Nichols,
Blurred Boundaries: Questions of Meaning in Contemporary Culture
(Bloomington: Indiana University Press, 1994), 30.

Duke, a former LAPD self-defense instructor:
The Rodney King Incident
.

Barrel-chested with a brown mustache:
The Rodney King Incident
. Unsurprisingly, jurors are less likely to accept what an expert says when there is a salient reason to think he might be biased. Owen D. Jones et al., “Neuroscientists in Court,”
Nature Review Neuroscience
14 (2013): 732. The prosecution's expert on use of force, Commander Michael Bostic, was effectively discredited when the defense team raised the suggestion that Bostic was simply acting as a mouthpiece for the L.A. police chief—his boss—who wanted the officers convicted so he could wipe away the problem. Linda Deutsch, “Witness Denies Being Influenced by Gates,”
Los Angeles Times
, April 14, 1992,
http://articles.latimes.com/​1992-04-14/​local/me-1_1_excessive​-force
. By focusing our attention on salient biases like this, we may overlook more powerful skew that lies below the surface.

“I never form an opinion”:
“Excerpts from the LAPD Officers' Trial,”
Famous Trials
, accessed August 27, 2014,
http://law2.umkc.edu/​faculty/projects​/ftrials/lapd/​kingtranscript.html
.

No:
“Excerpts from the LAPD Officers' Trial.”

The officers were following:
The Rodney King Incident
; “Excerpts from the LAPD Officers' Trial.”

Just as important:
Nichols,
Blurred Boundaries
, 30.

Duke, trading on the power:
Carolyn Boyes-Watson,
Crime and Justice: Learning Through Cases
(Lanham, MD: Rowman & Littlefield, 2014), 220. Steven Chermak and Frankie Y. Bailey, eds.,
Crimes and Trials of the Century Volume 1: From the Black Sox Scandal to the Attica Prison Riots
, (Westport, CT: Greenwood Press, 2007), 148;
The Rodney King Incident
; “Excerpts from the LAPD Officers' Trial.”

It seemed like an entirely natural:
Helen E. Allison and Richard J. Hobbs,
Science and Policy in Natural Resource Management: Understanding System Complexity
(New York: Cambridge University Press, 2006), 85.

And the particular techniques:
Allen Feldman, “On Cultural Anesthesia: From Desert Storm to Rodney King,”
American Ethnologist
21, no. 2 (May 1994): 411.

Duke's air of objective authority:
Feldman, “On Cultural Anesthesia,” 411.

Even more masterful:
Feldman, “On Cultural Anesthesia,” 412.

His approach focused the attention:
Feldman, “On Cultural Anesthesia,” 412.

We assume that the result:
There is an evolutionary narrative here, too: with capacities honed over 250,000 generations—five million years since we diverged with our chimpanzee siblings—it stands to reason that we are no amateurs when it comes to spotting liars and miscreants. Paul H. Robinson, Robert Kurzban, and Owen Jones, “The Origins of Shared Intuitions of Justice,”
Vanderbilt Law Review
60 (2007): 1643 n. 35. To gain the significant benefits of group living, we had to minimize the costs. Robinson, Kurzban, and Jones, “The Origins,” 1647–49. Those less able to discern deception, deceit, and dishonesty in the people around them would have been at a comparative disadvantage in the competition to survive and pass on their genes. Robinson, Kurzban, and Jones, “The Origins,” 1647–49. Evolutionary pressures, then, left us natural-born experts in lie detection—or so we assume.

The Model Criminal Jury Instructions:
“About the Court,” United States Court of Appeals for the Third Circuit,
http://www.ca3.uscourts.gov/​about-​court
; M
ODEL
C
RIMINAL
J
URY
I
NSTRUCTIONS
: C
REDIBILITY OF
W
ITNESSES
§ 3.04 (3d Cir. 2012).

Before trial, Third Circuit judges:
M
ODEL
C
RIMINAL
J
URY
I
NSTRUCTIONS
§3.04.

Detecting lies isn't rocket science:
M
ODEL
C
RIMINAL
J
URY
I
NSTRUCTIONS
§3.04.

Jurors don't even have to:
You must, however, be over the age of eighteen to serve on a federal jury. “Juror Qualifications, Exemptions and Excuses,” United States Courts, accessed May 18, 2014,
http://www.uscourts.gov/​FederalCourts/JuryService​/JurorQualificaitons.aspx
.

Our system of justice celebrates:
M
ODEL
C
RIMINAL
J
URY
I
NSTRUCTIONS
: R
OLE OF THE
J
URY
§ 1.02 (3d Cir. 2012).

Those officially designated as experts:
F
ED
. R. E
VID
. 702.

In the Third Circuit, for example:
M
ODEL
C
RIMINAL
J
URY
I
NSTRUCTIONS
: O
PINION
E
VIDENCE
(E
XPERT
W
ITNESSES
) § 2.09 (3d Cir. 2012).

In fact, a juror “may disregard”:
M
ODEL
C
RIMINAL
J
URY
I
NSTRUCTIONS
§ 2.09.

In experiments and surveys:
Dan Simon, “The Limited Diagnosticity of Criminal Trials,”
Vanderbilt Law Review
64 (2011): 175–76. And it is not just Americans or Westerners who put a lot of stock in the link between truth and maintaining eye contact, either—when researchers surveyed respondents from over fifty countries, some two-thirds of people suggested that averting one's gaze was linked to lying. Simon, “Limited Diagnosticity,” 176.

Police officers and others:
Simon, “Limited Diagnosticity,” 175–76.