(Don’t) speak, memory

One year ago, a police officer in Ferguson, Missouri, fatally shot an unarmed 18-year old named Michael Brown, sparking a nationwide discussion on the complicity of law enforcement in enabling our broken criminal justice system. 

Heightened focus on the nation’s police is long overdue. But it’s also worth noting that the vast majority of defendants who are wronged by the criminal justice system suffer their greatest harm not at the hands of police, but by a system of adjudication riddled with deficiencies.

In his new book, “Unfair: The New Science of Criminal Injustice,” Drexel University law professor Adam Benforado explores the nature of these defects — which include wrongful convictions, false confessions and bad verdicts — by focusing on new discoveries in the cognitive sciences.

Among other things he highlights recent studies that reveal how acute problems with our trial system are rooted in the subconscious drivers that influence the way individual investigators, witnesses, jurors and even judges make sense of the world around them. This has prompted courts to begin exploring ways of mitigating the impact so-called “implicit biases” on judicial procedures.

Understanding the limitations of the human mind — and how judicial practices have learned to exploit them — helps explain the stark disconnect between the American ideal of justice and our ability to properly dispense it. More importantly, it could offer clues into ways of improving our justice process to make it more equitable, impartial and fair. 

Despite the prominent role eyewitness testimony plays in prosecuting criminal cases, it is widely accepted that human perception is highly malleable, particularly during times of anxiety and stress. In the days following the Ferguson shooting, for instance, a version of the events took shape based on eyewitness statements that included Brown having his hands up in surrender when he was gunned down by Officer Darren Wilson. Yet after interviewing nearly two dozen eyewitnesses who originally made that claim, investigators from the Department of Justice found most of their accounts unreliable because they conflicted with physical and/or forensic evidence, or contradicted earlier statements. This last point suggests that the recollection of some witnesses had actually evolved to fit the dominant narrative.

This isn't surprising. As early as the 1970s researchers proved what philosophers and linguists have been arguing over for centuries: What people remember about a particular situation or event is easily influenced by the language others use to describe it. Neuroscientists now say that contrary to earlier theories that viewed memories as static impressions, the mere process of recalling an event can change one’s recollection of it.

The consensus among legal experts is that mistaken eyewitness testimony is responsible for more wrongful convictions than any other form of evidence; but since these witnesses are usually convinced of their own version of events, detecting a false memory from a genuine one is nearly impossible without an alternate finding of fact.

Criminal investigators can turn these tendencies to their favor, knowingly or not, with something as simple as a strategically placed a photograph or a disapproving facial gesture.

Last year — in response to a growing number of exonerations tied to faulty eyewitness testimony — the National Academy of Sciences called for sweeping reforms to improve the reliability of eyewitness testimony, largely by adding safeguards to lessen outside influences on witness testimony.

While this is an encouraging step, many of the deficiencies that make humans unreliable witnesses negatively influence other aspects of the judicial process, including some of our most sacred institutions.

At the top of this list is our jury system, which reformers identified decades ago as a source of judicial inequity. And it’s hard to argue against them. During Jim Crow, all-white juries across the South regularly ignored the facts to acquit white defendants accused of crimes against blacks. And as recently as 2014 it was demonstrated that  juries are more likely to sentence black defendants to death.

Even in apparently ideal circumstances, civilian juries are poorly equipped to impartially navigate conflicting interpretations of law and fact. For example, research shows that two-thirds of jurors don’t understand judges’ instructions even though they say they do. During deliberations, “holdout” jurors who take positions contrary to the majority report being bullied, sometimes successfully, into changing their vote.

These issues are even more pronounced when we use civilian juries to decide whether to bring charges against someone. That's because grand juries operate under procedures that unilaterally favor the state, which explains why they so rarely return charges on police officers.

There have been periodic calls over the years for the U.S. to follow the lead of nations such as France, Greece, India and South Africa and abandon the use of juries composed entirely of civilians in favor of panels comprised of both citizens and trained jurists. However, this remains a minority position in America — a consequence, no doubt, of our lack of faith in partisan judges (a problem that could be rectified by reforming judicial elections) and the mistaken belief that a right to be tried by a jury of one’s peers is guaranteed by the Sixth Amendment.  

With the right fixes we can greatly improve the operation of trial courts without such a radical step as abolishing civic juries. For starters we should do away with grand juries in the roughly half of U.S. states that still require them for certain felonies. Grand juries are costly, inefficient and unreliable. A poll taken after a grand jury failed to indict the NYPD officer responsible for the July 17, 2014 death of Eric Garner found that 57 percent of Americans favored charges, while a detailed analysis of the evidence in the case by two Columbia University law professors found ample probable cause to indict based on the medical examiner’s report and video evidence alone. Grand juries also happen to be unnecessary: In nearly half of U.S. states they're already optional, and the birthplace of the modern grand jury, Britain, stopped using them decades ago.

Next in line for reform is our adversarial system of adjudication, which gives lawyers for the state and the defense the opportunity to present their own “facts” and counter those of the opposition using tactics that are overtly manipulative. The best trial attorneys are practiced at exploiting the malleability of human memory, and they prey on our natural tendency to second-guess our own beliefs under pressure from authority figures to make even the most objective facts seem suspect.

To this end, they are free to use surrogates in the form of “expert witnesses” who are presented as objective arbiters of fact but are actually just hired guns in a trial-by-combat where truth is often the first casualty. The average hourly rate for testimony by an expert witness is roughly $500 according to one professional association (it’s telling that there is actually a professional association for expert witnesses) and in high-profile cases opposing parties regularly spend tens of thousands of dollars on expert testimony. 

Sensing a growing racket, since 2000 American courts have established stricter guidelines on who may qualify to testify as an expert. This hardly matters, since jurors and judges almost always lack the capacity to assess the validity of what they’re hearing. Instead they tend to rely on less ideal measures of credibility, such as who made the most eye contact or wore a newer suit.

America's hyper-adversarial trial system not only unfairly favors parties that can afford to assemble the best teams, it deliberately obscures the path to justice. This has prompted several preeminent legal scholars to make a case for reforming it by limiting the role of attorneys in cross-examination, doing away with partisan experts and employing independent fact-finders to assess evidence. This may be bad for courtroom dramas, but it could help ensure that trial outcomes are grounded in reason and truth rather than emotion and trickery.   

While it may be impossible to correct every flaw in our criminal justice system, the process of reforming it will require accepting that humans are naturally unsuited to be its custodians so that we can begin addressing judicial conventions that feed on that weakness.