November 11, 2020 • 34 mins
Josh Dubin discusses Eyewitness Testimony with renowned psychologist Elizabeth Loftus, a professor at the University of California, Irvine. She studies human memory, specifically the malleability of memory, a huge factor in cases where eyewitness testimony is used as evidence.
It turns out that memories, just like other forms of evidence, can be manipulated, contaminated, and planted.
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Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:00):
It's a warm summer evening in Virginia, where a nine
to one to one operator answers a call. There's a
woman on the other end of the line. She says
she's been attacked. Police arrive at the victim's home and
they take a statement. The victim, a white woman, says
(00:21):
that as she was walking to her apartment, she came
across a man laying on the ground. He was clutching
his leg. She thought he must have fallen off the
bike that was toppled over next to him, so she
bent down to help him, and that's when he grabbed her,
beat her, and raped her. The victim told the police
(00:42):
everything she could remember about her attacker. She said the
man was black with a light complexion. He had a mustache,
a beard, and some scratches on his face. Before the
attacker left the scene of the crime, he told the
victims some vague details about his life. He told her
that he had quote had other white women. The police
(01:05):
escort the victims to the hospital, where a rape kit
is taken and sent off to a crime lab. You're
eighteen years old, just graduated from high school. Since you
were thirteen, you knew that you wanted to be a firefighter,
(01:27):
and now you're doing it. You're attending the fire academy
this summer. You're also working at a theme park, collecting
tickets running the rides. It's not the most glamorous job,
but hey pays the rent. A few months ago, you
moved out of your parents' house and into an apartment
with your girlfriend. Everyone says you're too young, but you
(01:49):
don't care what they think. You're planning your future together.
One evening, you finish up your shift at the theme
park and head to the office to clock out. You
see a cop there chatting with your boss. You don't
think much of it. There's always some security or police
at the park. But then you see your boss sort
of flick his head in your direction, and when you
(02:11):
try to leave the office, the cops stops you. He says, hey,
let me talk to you for a minute. Have you
heard about the rape that took place a few days ago,
not too far from here. It's like he knew that
this crime had been on your mind. You've been making
your girlfriend lock the door behind you every time you
leave the house. You say, yes, sir, I did hear
(02:35):
about it? Do you know who did it? The officer
says he has some questions and asks you if you'll
come to the police station with him. When you get there,
the officer takes you into a small room with a
table and a few chairs. He says, wait here, you'll
stand in as part of a police lineup, and I'll
(02:55):
come back and get you in a few minutes. It
dawns on you you're not just here to answer questions.
You're a suspect in this crime. You call out to
the officer, Wait, what am I doing here? He says,
the rapists said that he had been with other white women.
Don't you live with your white girlfriend? He closes and
(03:19):
locks the door behind him. You lean over in your
seat and cover your face with your hands. Who would
have known information about your personal life and try to
use it against you? Was it one of those cops
that used to stop by the fire station when you
were at the training academy. Maybe they saw your girlfriend
(03:42):
dropping off dinner at the fire station one night. You
stop and take a deep breath, reminding yourself that being
a black man living with your white girlfriend isn't a crime.
At least it's not supposed to be not anymore. And
yet none of this seems to matter someone. Some cop
(04:03):
already had their eye on you for this very reason,
But you didn't do anything wrong, and you're hopeful that
the victim's memory of her attacker will set things straight.
What you don't know is that just down the hall
from where you're sitting, the woman who called nine to
one one a few days ago is sitting in front
(04:23):
of six pictures. An officer tells her to pick out
the face of the man who attacked her. All of
the photos set out in front of her are black
and white mugshots except for one, yours. You've never been
in trouble with the law, and so you don't have
a mugshot. Instead, the cop that showed up at your
(04:46):
job took a picture of your ID card from the
theme park and slipped it into the photo lineup. Yours
is not just the only one that's not a mugshot,
it's also the only one that's p in color, so
it immediately grabs the woman's attention. She chooses your photo
(05:07):
and says, I think that's him. The officer comes back
in to get you. He brings you into a room
with a window in it and asks you to stand
in a line with some men. These other men are
known as fillers. None of these fillers are potential suspects.
The point of them is to see if the victim
(05:29):
can identify your face amongst others who are supposed to
resemble the suspect. None of these other people's faces were
in any of the photos the victim saw except for yours,
your color photo ID. That's the only photo that matches
the face of anyone in this lineup. There's an officer
(05:50):
at the front of the room and he starts barking
out orders to you and the fillers. Stand there and
look straight ahead. Now turn to your right, Now turn
to your left. You follow the directions that are being
shouted out. You can't see her because she's on the
(06:13):
other side of a one way mirror, but the victim
points you out. She says it's him. I'm sure of it,
And that's all the information the cops need to hear,
and you are arrested on the spot. You sit in
jail wondering what in the world you're supposed to make
(06:37):
of how this woman mistook you for someone else. You
look nothing like the witness's original description of her attacker.
She'd reported that he had light skin, a mustache, a beard,
and scratches on his face. You have dark skin, You're
almost always clean shaven. There are no scratches or marks
(06:58):
on your eighteen year old face. How could that picture
in her head, the memory of her attacker, change so
much in such a short amount of time. What is
it about that lineup that made her choose you? You
eventually stand trial in front of an all white jury
(07:21):
of eight women and four men. You were taught your
entire life to trust law enforcement, to believe in this
system of justice. The police, officers, judges, lawyers, jurors. They
were all there to figure out the truth, to do
the right thing. But that image comes shattering down when
(07:44):
the jury comes back and finds you guilty of rape, abduction, robbery,
and for sodomy. The judge sentences you to two hundred
and ten years in prison. After the sentence is read,
you slowly look behind you. You try to find your mom,
(08:08):
your family. You know they're sitting just behind you, but
you can't see a foot ahead of you. Everything goes black.
The story you just heard is based on the true
events of Marvin Anderson's wrongful conviction six years after he
(08:30):
was sentenced to life in prison, another man confessed to
attacking the woman who had misidentified Marvin. The man that
confessed presented new details to a judge that seemed to
prove his guilt in Marvin's innocence. Still, the judge did
not vacate marvin sentence. Marvin wrote a letter to the
(08:50):
Innocence Project and they took up his case. After years
of work, lawyers of the Innocence Project were finally able
to convinced the judge to compare Marvin's DNA with the
DNA from seamen recovered from the victim. When the rape
kit was performed, Marvin was not a match, but another
(09:11):
man was a match, the man who had confessed to
the crime. After fifteen long years in prison, Marvin walked
free and became the ninety ninth person to be exonerated
based on DNA evidence. He's since become chief of the Hanover,
Virginia Fire Department and serves on the board of the
(09:32):
Innocence Project. I'm Josh Dubin civil rights and criminal defense attorney,
an innocent ambassador to the Innocence Project in New York. Today,
on Wrongful Conviction junk Science, we examine eyewitness testimony when
a witness points to a suspect and says that's the
(09:53):
person who committed this crime. There is nothing more convincing
to a jury, but it is dangerous inaccurate. Over two
thirds of people who were later exonerated based on DNA
evidence were convicted based on eyewitness testimony. It may sound
like a simple premise, but in order for eyewitness testimony
(10:15):
to work and be reliable, we need to rely on
our own memories and those of others. But it turns out,
just as physical evidence can be manipulated, contaminated, or even planted,
so too can memories. In the early eighteen eighties, Professor
(10:44):
Wilhelm Want, the father of modern psychology, was giving a
lecture at the University of Leipzig in Germany. One of
his students attending the lecture was Hugo Munsterberg and Hugo
when he heard this lecture, he was hooked. He was
so fascinated by psychology and he began to study under
(11:05):
the father of psychology himself. After completing his studies, Hugo
started working at Harvard University, where he led the Experimental
Psychology Lab. Hugo was especially interested in the concrete everyday
applications of psychology. He wanted to study if and how
(11:25):
psychology impacted juries and trial outcomes, and so he began
to run experiments on the memory of eyewitnesses. In one
of his famous experiments, Hugo tested the memories of both
adults and children. He showed them a photo. In it,
there was a farmer sitting at a table eating some soup.
(11:49):
Hugo had his test subjects looked closely at the photo,
then he took the photo away. Hugo then asked him
opened endo questions about it, like what did you see
in the photo. To these questions, the witnesses responded there
was a man in the photo eating his soup. Their
memories were accurate, But then Hugo started asking what he
(12:12):
called suggestive questions. He asked, for example, did you see
the stove in the room. Many of the eyewitnesses answered yes,
they saw the stove, but there was no stove in
the photo. Hugo found that through asking suggestive questions like these,
he was able to get his test subjects to remember
(12:34):
dozens of objects in the photo that never existed. In
another experiment, Hugo sat at a desk at the front
of a room and told his students, remember every detail
of what I'm about to do. Starting now. With his
right hand, Hugo took out a colorful disk and began
(12:55):
to spin it. While staring at the disk that he
was spinning with his right hand, he used his left
hand to take out a pencil and write something down
on a piece of paper, Keeping that disk spinning in
his right hand, he used his left hand again to
take out a cigarette case, open it, take out a cigarette,
(13:15):
shut the case with a loud click, and put it
back into his pocket. At one hundred students who saw
this demonstration, only eighteen of them were able to report
what Hugo had done with his left hand, and so
Hugo was not only able to show that witnesses might
fabricate details of a memory that never existed, but they
(13:37):
are also likely to not remember many details of events
that happened right in front of their faces. These experiments
also demonstrated that the memories of two different people observing
the same event or photo could be wildly different, despite
the fact that they had no stake in line or
(13:57):
making the outcome of the events appear to have happened
one way or another. Hugo also concluded that the witness's
own claim of certainty didn't necessarily mean that their memories
were more accurate. A witness might say, for example, that
they were absolutely certain that there was a stove in
the photo, or that he or she was certain that
(14:18):
all Hugo did was spin a disk in his right hand,
But even as they claimed certainty, there was proof that
their memories were incorrect. When his book on these experiments
was published in nineteen oh eight, The New York Times
wrote that his studies had the potential to revolutionize courtroom
procedure and to quote bring light and order in domains
(14:41):
where all or almost all is darkness and confusion. But
that's not what happened, because Hugo also had many critics
who scoffed at his attempt to apply psychology to the courtroom,
and so courtroom procedure around eyewitness testimony was not completely
re revolutionized. To this day, countless innocent men and women
(15:05):
are sent to prison based on faulty eyewitness testimony. Over
a half a century after Hugo's research was mocked, psychologist
Elizabeth Loftis took another look at eyewitness testimony with a
more modern take on Hugo's experiments, she was able to
prove just how unreliable eyewitness testimony is and why it
(15:28):
shouldn't be trusted as the gold standard of evidence in
a courtroom or in a police lineup.
Speaker 2 (15:37):
Many people, unfortunately believe that memory works like a recording device.
You take in the information, you record it, you just
play it back the way some kind of video recorder
would work, And that is not really the way memory works.
What happens when we're remembering something is we tend to
take bits and pieces of experience, sometimes from different times
(16:01):
of places. We bring it together and we construct a memory.
So I like to think of memory a little bit more,
not like a recording device, but more like a Wikipedia page.
You can go in there and edit it, but so
can other people.
Speaker 1 (16:18):
Today on our show, we're speaking with renowned psychologist Elizabeth Loftus.
Elizabeth is currently a professor at the University of California, Irvine.
She studies human memory, specifically the malleability of memory, which
of course is a huge factor in cases where eyewitness
testimony is used as evidence. So, Elizabeth, can you tell
(16:43):
us about some of the experiments that you worked on
to study memories of eyewitnesses.
Speaker 2 (16:49):
You know. One of the ways that I and my
collaborators have studied memory and hundreds of studies you know,
probably now forty fifty thousand participants over the course of
my career. One of the ways that we study memory
is we'll show people a simulated crime. For example, we
(17:12):
will then expose people to some new information about that crime.
So they might have seen a bad guy take a
wallet out of somebody's purse and he's wearing a green jacket,
but they then get misinformation from another witness or from
a leading question that the jacket was brown. And finally,
(17:35):
we will ask our witnesses, tell me exactly what you saw,
give me as much detail as you can remember, and
many of them will then remember that the jacket was
brown and not green, or we can make them believe
the bad guy had curly hair instead of straight hair.
All by exposing people to new information, misleading information, it
(17:59):
impairs our own memory, and this is now referred to
in the psychological literature as the misinformation effect.
Speaker 1 (18:08):
So give me another example. What are some other experiments
you did where misinformation just kind of gets slipped into
the person's memory without them even knowing it.
Speaker 2 (18:19):
We've shown people a simulated accident. A car goes through
an intersection with a yield sign and then ends up
hitting a pedestrian and pedestrian falls over. A police officer
comes to tend to the pedestrian who's lying down on
the ground. Afterwards, our witnesses are asked a series of questions,
(18:43):
and one of those questions might be did another car
pass the red dots and when it was at the
intersection with the stop sign. Now, that is a very
clever question, just so you can appreciate the cleverness you
as the wait think I'm asking you about whether another
car passed while the Dobson was stopped. You revisualize the scene,
(19:09):
and in your visualization you might put in a stop
sign that I've mentioned as part of the question. You
think you're answering about whether another car stop, but this
stop sign kind of invades your consciousness, almost like a
trojan horse. You don't even detect that it's coming. And
after that, many people will then claim I saw a
(19:33):
stop sign at that intersection. And you can show them
two scenes, the scene with a stop sign or the
scene with a yield sign. They'll pick the one with
a stop sign. They have succumbed to the question and
fallen sway to its suggestion, and now it appears as
if this is their memory.
Speaker 1 (20:03):
Now, I want to get back to the way cops
influence a witness. I've dealt with cases where the cops
know who the suspect is and do things either consciously
or even unconsciously, I guess, to encourage the witness to
choose the person that they believe is their suspect. Have
(20:25):
you dealt with anything like that in your research.
Speaker 2 (20:29):
One of my favorite examples a case I testified in
in California. There's a crime. The eyewitness has shown a
six pack six photographs. The eyewitness says, I really don't
recognize anybody, and the officer says, wait a minute, I
see your eyes drifting down to number six. What's going
(20:51):
on there? Eventually number six gets seized upon identified, and
that's the person who gets prosecuted. So there's a highly
suggestive thing going on here. I'm willing to get, certainly
to give these officers the benefit of the doubt and
say they they're not even aware in a way of
(21:13):
their own influence, and that a lot of what's happening
is is kind of unwitting.
Speaker 1 (21:20):
So look, I'm an alleged expert in jury selection, and
people are always saying to me, like, how does this
affect you? Are you always trying to psychoanalyze me? So
tell me a little bit about how this, you know,
deep knowledge of memory impacts you. Do you find yourself
like not trusting your own memory at times?
Speaker 2 (21:41):
Well, the one experience that I do have from all
these decades of doing this kind of work is I
understand that along with those like sort of bits of
truth are bits of fiction intermingled in there. And I'm
not bothered by that. I understand, and that's part of
(22:01):
the malleable nature of memory. I think what this acceptance
has done for me is it makes me a little
bit more tolerant of the mistakes that friends make, or
family members make, or even I myself might make. I
don't immediately assume somebody is a big fat liar. They
(22:24):
could honestly have a false memory. And I think it's
a kind of kinder way to feel about people.
Speaker 1 (22:30):
Okay, so that's pretty interesting. Do you think this same
kindness as you refer to it, that you offer let's say,
your friends, your family, even yourself, do you think we
should offer witnesses the same kind of kindness in court cases.
Speaker 2 (22:46):
Do you want to call these people a liar or
do you want to accept the fact that maybe some
kind of process has led them to develop a set
of beliefs and things that feel to them like memory,
And it is kinder even in a court case. I
think sometimes for lawyers who are challenging these memories to
(23:09):
talk about them as potentially false memories rather than talk
about the accuser as being a big fat liar.
Speaker 1 (23:17):
So you're an expert witness in a lot of cases
that depend on eyewitness testimony. You know, we've talked a
lot throughout the course of this podcast about how some
expert witnesses aren't basing their testimony on good science or facts.
But you're not that kind of witness. I mean, you've
been studying memory for years and years, and you've done
(23:40):
experiments and you know, tested this with thousands of participants.
You have a lot of data to back up what
you're testifying to in court. But tell me, have you
ever heard of witness testifying in court or read their
testimony and it kind of made you think, well, this
isn't science at all. They're actually twisting this so much
(24:00):
that it's more like junk science.
Speaker 2 (24:03):
I guess what I've seen happen in some cases, and
this bothers me where I think opposing experts are introducing
junk science. It's about trauma. They want to introduce to
science that basically says traumatic memories are completely different. Traumatic memories,
(24:27):
you know, are stored in the body. Traumatic memories can
be relied on traumatic memories that kind of don't have
these same problems. In fact, traumatic memories operate under similar
in similar ways. They fade over time, they can be
influenced by post event information. They're just lots of features
(24:50):
of memory that are true, whether you're trying to remember
something that's upsetting or whether you're trying to remember something
that is a little bit more new and less emotional.
You see this in the movies all the time. They're
saying something like, I was so frightened when this happened.
I'll never forget that face as long as I live.
(25:12):
That's an expression of the belief that this traumatic memory
is sort of imprinted in the brain and is reliably
and solidly there, and you just need to read it out.
And that is not the way things work. With memory
in general, or even traumatic memories.
Speaker 1 (25:32):
So tell us more about that, because I do think
that when we hear about someone who has been raped
or there's been a violent attack, our instinct is that
we should believe them no matter what, right, like, why
would somebody make this up? So how do we reconcile
(25:53):
the desire to believe a victim, or the natural tendency
to believe a victim, with the knowledge that memories just
aren't the most reliable form of evidence.
Speaker 2 (26:06):
I think the way we reconcile all this is that
when there is somebody with an accusation, we certainly listen
to it and examine it. And we don't want to
uncritically accept every accusation, no matter how dubious. And we
don't want to routinely reject an accusation just because we
(26:29):
don't like how it sounds. So I do think there
is a way to reconcile these two seemingly conflictual driving forces.
But I don't think we forego our democratic principles and
and forget about the fact that we're proud to have
(26:49):
a legal system that respects the rights of the accused
to have a defense.
Speaker 1 (26:58):
Yeah, I mean, it's a tough to let right, because
I've had that instance just last week where you know,
I am defending someone who I believe to be innocent.
And you know, when people hear about the case, or
you tell them about the case, you know, at least
what's public knowledge. You know, their reaction is, well, why
(27:19):
would somebody make up, you know, a accusation of sexual
assault for instance. But the reality is is that they
may not be consciously making it up. It may not
be a conscious lie. It may just be that their
perception and what they think is their reliable memory is
just not correct. Now, look, I have my own ideas,
(27:43):
and you know, the Innocence Project, as you know, has
done a ton of policy work around this and trying
to get reform achieved in law enforcement across the country
and the way they go about instituting line up and
you know, eyewitness identifications. But you tell tell me what
(28:05):
you think. What do you think is a way that
we can reform the system so that eyewitness identification would
be more accurate.
Speaker 2 (28:13):
First of all, one thing that is important when law
enforcement is conducting some kind of test, whether it's with
photographs or whether it's with a live lineup, how do
you conduct the test. What instruction do you give to
the witness who conducts the test? Who are the fillers?
(28:33):
The people who are put in the set of photos
are put in the lineup along with your suspect. Each
of these issues is important, and there are best practices
that have been devised by scientists and very thoughtful people
in the legal field about what those best practices should be.
(28:55):
So best practice, the person conducting the test should not
know who the suspect is. That's one of the most
important things that In other words, the person conducting the test.
It should be what's called a double blind test. The
witness doesn't know who the suspect is and the person
conducting the test doesn't know who the suspect is. And
(29:17):
why that's important is because that means that the person
conducting the test cannot inadvertently queue the witness as to
who to pick, and the investigator cannot give feedback to
the witness, cannot say, good job, that's our suspect, that's
(29:37):
who we think did it. Another witness pick that same person.
This kind of feedback artificially inflates the confidence of the
witness and makes them a more powerful witness. At the
time of the trial more impervious to cross examination. It's
not a fair situation. So blind testing is one simple
(30:01):
reform that's been suggested. How about the instruction you give
to the witness. It's very important to have an unbiased
instruction to say to the witness, you know the person
may or may not be in this lineup. It's just
as important to exonerate the innocent as to find the
guilty person. You're trying to take pressure off of the witness.
(30:26):
Take the pressure off so they don't feel they've got
to pick someone anyone in order to solve the case.
So that's why that instruction is important. Then there are
other issues like who you put into the lineup. What
should the fillers look like? Do they just resemble the suspect? No,
they should also resemble the description that the witness gave.
(30:49):
So if the witness said, you know a skinny guy
with medium length hair, you want basically skinny people with
medium length hair fitting the description, not just fitting the
characteristics of the suspect.
Speaker 1 (31:07):
What is the biggest takeaway that you think our listeners
should have from today's episode.
Speaker 2 (31:14):
Just because somebody tells you something and they say it
with a lot of detail, and they say it with confidence,
and they even show emotion when they tell you. It
doesn't mean it really happened. It doesn't mean it really
happened exactly that way. You need independent corroboration to know
whether you're dealing with an authentic memory or one that
(31:39):
is a product of some other process imagination, suggestion, misinterpreting dreams,
or some other non authentic process.
Speaker 1 (31:54):
We always try to end each episode with a call
to action. So I've been thinking about the lessons today's
interview with Elizabeth and just how interesting, informative and really
eye opening it's been. When someone's freedom hangs in the balance,
we should leave open the possibility that when someone takes
a witness stand and claims to have watched a crime
(32:17):
unfold or says they are sure they saw the defendant
leaving the scene of a crime, they may not be
accurately conveying what happened, and not because they're intentionally lying
or even shading the truth, but their memory may have
been influenced in some way. So consider the surrounding circumstances,
Whether they were fed information, if there was a suggestion
(32:40):
about who may have committed the crime by a member
of law enforcement if the methods used to quote unquote
identify a perpetrator were influenced in a way that made
the accused stand out. And maybe it's not the most
reassuring thing that in an error. When it seems that
misinformation is rather popular and it's sometimes difficult to know
(33:01):
what the truth actually is. Here is yet another reason
to doubt our perception and reality. But remember, your willingness
to remain open to all credible possibilities may in fact
prevent the next wrongful conviction. Next week, on our final
(33:25):
episode of the season, we'll explore how what's known as
shaken baby syndrome has been used to falsely implicate people
in crimes they did not commit. We'll discuss this with
executive director of the Center for Integrity and Forensic Sciences,
Kate Judson. Wrongful Conviction Junk Science is a production of
(33:46):
Lava for Good Podcasts in association with Signal Company Number One.
Thanks to our executive producer Jason Flahm and the team
at Signal Company Number One, executive producer Kevin Wardis and
senior producers Kara Kornhaber and BRIT's. Our music was composed
by Jay Ralph You can follow me on Instagram at
dubin Josh. Follow the Wrongful Conviction podcast on Facebook and
(34:10):
on Instagram at Wrongful Conviction, and on Twitter at wrong
Conviction
It's a warm summer evening in Virginia, where a nine
to one to one operator answers a call. There's a
woman on the other end of the line. She says
she's been attacked. Police arrive at the victim's home and
they take a statement. The victim, a white woman, says
(00:21):
that as she was walking to her apartment, she came
across a man laying on the ground. He was clutching
his leg. She thought he must have fallen off the
bike that was toppled over next to him, so she
bent down to help him, and that's when he grabbed her,
beat her, and raped her. The victim told the police
(00:42):
everything she could remember about her attacker. She said the
man was black with a light complexion. He had a mustache,
a beard, and some scratches on his face. Before the
attacker left the scene of the crime, he told the
victims some vague details about his life. He told her
that he had quote had other white women. The police
(01:05):
escort the victims to the hospital, where a rape kit
is taken and sent off to a crime lab. You're
eighteen years old, just graduated from high school. Since you
were thirteen, you knew that you wanted to be a firefighter,
(01:27):
and now you're doing it. You're attending the fire academy
this summer. You're also working at a theme park, collecting
tickets running the rides. It's not the most glamorous job,
but hey pays the rent. A few months ago, you
moved out of your parents' house and into an apartment
with your girlfriend. Everyone says you're too young, but you
(01:49):
don't care what they think. You're planning your future together.
One evening, you finish up your shift at the theme
park and head to the office to clock out. You
see a cop there chatting with your boss. You don't
think much of it. There's always some security or police
at the park. But then you see your boss sort
of flick his head in your direction, and when you
(02:11):
try to leave the office, the cops stops you. He says, hey,
let me talk to you for a minute. Have you
heard about the rape that took place a few days ago,
not too far from here. It's like he knew that
this crime had been on your mind. You've been making
your girlfriend lock the door behind you every time you
leave the house. You say, yes, sir, I did hear
(02:35):
about it? Do you know who did it? The officer
says he has some questions and asks you if you'll
come to the police station with him. When you get there,
the officer takes you into a small room with a
table and a few chairs. He says, wait here, you'll
stand in as part of a police lineup, and I'll
(02:55):
come back and get you in a few minutes. It
dawns on you you're not just here to answer questions.
You're a suspect in this crime. You call out to
the officer, Wait, what am I doing here? He says,
the rapists said that he had been with other white women.
Don't you live with your white girlfriend? He closes and
(03:19):
locks the door behind him. You lean over in your
seat and cover your face with your hands. Who would
have known information about your personal life and try to
use it against you? Was it one of those cops
that used to stop by the fire station when you
were at the training academy. Maybe they saw your girlfriend
(03:42):
dropping off dinner at the fire station one night. You
stop and take a deep breath, reminding yourself that being
a black man living with your white girlfriend isn't a crime.
At least it's not supposed to be not anymore. And
yet none of this seems to matter someone. Some cop
(04:03):
already had their eye on you for this very reason,
But you didn't do anything wrong, and you're hopeful that
the victim's memory of her attacker will set things straight.
What you don't know is that just down the hall
from where you're sitting, the woman who called nine to
one one a few days ago is sitting in front
(04:23):
of six pictures. An officer tells her to pick out
the face of the man who attacked her. All of
the photos set out in front of her are black
and white mugshots except for one, yours. You've never been
in trouble with the law, and so you don't have
a mugshot. Instead, the cop that showed up at your
(04:46):
job took a picture of your ID card from the
theme park and slipped it into the photo lineup. Yours
is not just the only one that's not a mugshot,
it's also the only one that's p in color, so
it immediately grabs the woman's attention. She chooses your photo
(05:07):
and says, I think that's him. The officer comes back
in to get you. He brings you into a room
with a window in it and asks you to stand
in a line with some men. These other men are
known as fillers. None of these fillers are potential suspects.
The point of them is to see if the victim
(05:29):
can identify your face amongst others who are supposed to
resemble the suspect. None of these other people's faces were
in any of the photos the victim saw except for yours,
your color photo ID. That's the only photo that matches
the face of anyone in this lineup. There's an officer
(05:50):
at the front of the room and he starts barking
out orders to you and the fillers. Stand there and
look straight ahead. Now turn to your right, Now turn
to your left. You follow the directions that are being
shouted out. You can't see her because she's on the
(06:13):
other side of a one way mirror, but the victim
points you out. She says it's him. I'm sure of it,
And that's all the information the cops need to hear,
and you are arrested on the spot. You sit in
jail wondering what in the world you're supposed to make
(06:37):
of how this woman mistook you for someone else. You
look nothing like the witness's original description of her attacker.
She'd reported that he had light skin, a mustache, a beard,
and scratches on his face. You have dark skin, You're
almost always clean shaven. There are no scratches or marks
(06:58):
on your eighteen year old face. How could that picture
in her head, the memory of her attacker, change so
much in such a short amount of time. What is
it about that lineup that made her choose you? You
eventually stand trial in front of an all white jury
(07:21):
of eight women and four men. You were taught your
entire life to trust law enforcement, to believe in this
system of justice. The police, officers, judges, lawyers, jurors. They
were all there to figure out the truth, to do
the right thing. But that image comes shattering down when
(07:44):
the jury comes back and finds you guilty of rape, abduction, robbery,
and for sodomy. The judge sentences you to two hundred
and ten years in prison. After the sentence is read,
you slowly look behind you. You try to find your mom,
(08:08):
your family. You know they're sitting just behind you, but
you can't see a foot ahead of you. Everything goes black.
The story you just heard is based on the true
events of Marvin Anderson's wrongful conviction six years after he
(08:30):
was sentenced to life in prison, another man confessed to
attacking the woman who had misidentified Marvin. The man that
confessed presented new details to a judge that seemed to
prove his guilt in Marvin's innocence. Still, the judge did
not vacate marvin sentence. Marvin wrote a letter to the
(08:50):
Innocence Project and they took up his case. After years
of work, lawyers of the Innocence Project were finally able
to convinced the judge to compare Marvin's DNA with the
DNA from seamen recovered from the victim. When the rape
kit was performed, Marvin was not a match, but another
(09:11):
man was a match, the man who had confessed to
the crime. After fifteen long years in prison, Marvin walked
free and became the ninety ninth person to be exonerated
based on DNA evidence. He's since become chief of the Hanover,
Virginia Fire Department and serves on the board of the
(09:32):
Innocence Project. I'm Josh Dubin civil rights and criminal defense attorney,
an innocent ambassador to the Innocence Project in New York. Today,
on Wrongful Conviction junk Science, we examine eyewitness testimony when
a witness points to a suspect and says that's the
(09:53):
person who committed this crime. There is nothing more convincing
to a jury, but it is dangerous inaccurate. Over two
thirds of people who were later exonerated based on DNA
evidence were convicted based on eyewitness testimony. It may sound
like a simple premise, but in order for eyewitness testimony
(10:15):
to work and be reliable, we need to rely on
our own memories and those of others. But it turns out,
just as physical evidence can be manipulated, contaminated, or even planted,
so too can memories. In the early eighteen eighties, Professor
(10:44):
Wilhelm Want, the father of modern psychology, was giving a
lecture at the University of Leipzig in Germany. One of
his students attending the lecture was Hugo Munsterberg and Hugo
when he heard this lecture, he was hooked. He was
so fascinated by psychology and he began to study under
(11:05):
the father of psychology himself. After completing his studies, Hugo
started working at Harvard University, where he led the Experimental
Psychology Lab. Hugo was especially interested in the concrete everyday
applications of psychology. He wanted to study if and how
(11:25):
psychology impacted juries and trial outcomes, and so he began
to run experiments on the memory of eyewitnesses. In one
of his famous experiments, Hugo tested the memories of both
adults and children. He showed them a photo. In it,
there was a farmer sitting at a table eating some soup.
(11:49):
Hugo had his test subjects looked closely at the photo,
then he took the photo away. Hugo then asked him
opened endo questions about it, like what did you see
in the photo. To these questions, the witnesses responded there
was a man in the photo eating his soup. Their
memories were accurate, But then Hugo started asking what he
(12:12):
called suggestive questions. He asked, for example, did you see
the stove in the room. Many of the eyewitnesses answered yes,
they saw the stove, but there was no stove in
the photo. Hugo found that through asking suggestive questions like these,
he was able to get his test subjects to remember
(12:34):
dozens of objects in the photo that never existed. In
another experiment, Hugo sat at a desk at the front
of a room and told his students, remember every detail
of what I'm about to do. Starting now. With his
right hand, Hugo took out a colorful disk and began
(12:55):
to spin it. While staring at the disk that he
was spinning with his right hand, he used his left
hand to take out a pencil and write something down
on a piece of paper, Keeping that disk spinning in
his right hand, he used his left hand again to
take out a cigarette case, open it, take out a cigarette,
(13:15):
shut the case with a loud click, and put it
back into his pocket. At one hundred students who saw
this demonstration, only eighteen of them were able to report
what Hugo had done with his left hand, and so
Hugo was not only able to show that witnesses might
fabricate details of a memory that never existed, but they
(13:37):
are also likely to not remember many details of events
that happened right in front of their faces. These experiments
also demonstrated that the memories of two different people observing
the same event or photo could be wildly different, despite
the fact that they had no stake in line or
(13:57):
making the outcome of the events appear to have happened
one way or another. Hugo also concluded that the witness's
own claim of certainty didn't necessarily mean that their memories
were more accurate. A witness might say, for example, that
they were absolutely certain that there was a stove in
the photo, or that he or she was certain that
(14:18):
all Hugo did was spin a disk in his right hand,
But even as they claimed certainty, there was proof that
their memories were incorrect. When his book on these experiments
was published in nineteen oh eight, The New York Times
wrote that his studies had the potential to revolutionize courtroom
procedure and to quote bring light and order in domains
(14:41):
where all or almost all is darkness and confusion. But
that's not what happened, because Hugo also had many critics
who scoffed at his attempt to apply psychology to the courtroom,
and so courtroom procedure around eyewitness testimony was not completely
re revolutionized. To this day, countless innocent men and women
(15:05):
are sent to prison based on faulty eyewitness testimony. Over
a half a century after Hugo's research was mocked, psychologist
Elizabeth Loftis took another look at eyewitness testimony with a
more modern take on Hugo's experiments, she was able to
prove just how unreliable eyewitness testimony is and why it
(15:28):
shouldn't be trusted as the gold standard of evidence in
a courtroom or in a police lineup.
Speaker 2 (15:37):
Many people, unfortunately believe that memory works like a recording device.
You take in the information, you record it, you just
play it back the way some kind of video recorder
would work, And that is not really the way memory works.
What happens when we're remembering something is we tend to
take bits and pieces of experience, sometimes from different times
(16:01):
of places. We bring it together and we construct a memory.
So I like to think of memory a little bit more,
not like a recording device, but more like a Wikipedia page.
You can go in there and edit it, but so
can other people.
Speaker 1 (16:18):
Today on our show, we're speaking with renowned psychologist Elizabeth Loftus.
Elizabeth is currently a professor at the University of California, Irvine.
She studies human memory, specifically the malleability of memory, which
of course is a huge factor in cases where eyewitness
testimony is used as evidence. So, Elizabeth, can you tell
(16:43):
us about some of the experiments that you worked on
to study memories of eyewitnesses.
Speaker 2 (16:49):
You know. One of the ways that I and my
collaborators have studied memory and hundreds of studies you know,
probably now forty fifty thousand participants over the course of
my career. One of the ways that we study memory
is we'll show people a simulated crime. For example, we
(17:12):
will then expose people to some new information about that crime.
So they might have seen a bad guy take a
wallet out of somebody's purse and he's wearing a green jacket,
but they then get misinformation from another witness or from
a leading question that the jacket was brown. And finally,
(17:35):
we will ask our witnesses, tell me exactly what you saw,
give me as much detail as you can remember, and
many of them will then remember that the jacket was
brown and not green, or we can make them believe
the bad guy had curly hair instead of straight hair.
All by exposing people to new information, misleading information, it
(17:59):
impairs our own memory, and this is now referred to
in the psychological literature as the misinformation effect.
Speaker 1 (18:08):
So give me another example. What are some other experiments
you did where misinformation just kind of gets slipped into
the person's memory without them even knowing it.
Speaker 2 (18:19):
We've shown people a simulated accident. A car goes through
an intersection with a yield sign and then ends up
hitting a pedestrian and pedestrian falls over. A police officer
comes to tend to the pedestrian who's lying down on
the ground. Afterwards, our witnesses are asked a series of questions,
(18:43):
and one of those questions might be did another car
pass the red dots and when it was at the
intersection with the stop sign. Now, that is a very
clever question, just so you can appreciate the cleverness you
as the wait think I'm asking you about whether another
car passed while the Dobson was stopped. You revisualize the scene,
(19:09):
and in your visualization you might put in a stop
sign that I've mentioned as part of the question. You
think you're answering about whether another car stop, but this
stop sign kind of invades your consciousness, almost like a
trojan horse. You don't even detect that it's coming. And
after that, many people will then claim I saw a
(19:33):
stop sign at that intersection. And you can show them
two scenes, the scene with a stop sign or the
scene with a yield sign. They'll pick the one with
a stop sign. They have succumbed to the question and
fallen sway to its suggestion, and now it appears as
if this is their memory.
Speaker 1 (20:03):
Now, I want to get back to the way cops
influence a witness. I've dealt with cases where the cops
know who the suspect is and do things either consciously
or even unconsciously, I guess, to encourage the witness to
choose the person that they believe is their suspect. Have
(20:25):
you dealt with anything like that in your research.
Speaker 2 (20:29):
One of my favorite examples a case I testified in
in California. There's a crime. The eyewitness has shown a
six pack six photographs. The eyewitness says, I really don't
recognize anybody, and the officer says, wait a minute, I
see your eyes drifting down to number six. What's going
(20:51):
on there? Eventually number six gets seized upon identified, and
that's the person who gets prosecuted. So there's a highly
suggestive thing going on here. I'm willing to get, certainly
to give these officers the benefit of the doubt and
say they they're not even aware in a way of
(21:13):
their own influence, and that a lot of what's happening
is is kind of unwitting.
Speaker 1 (21:20):
So look, I'm an alleged expert in jury selection, and
people are always saying to me, like, how does this
affect you? Are you always trying to psychoanalyze me? So
tell me a little bit about how this, you know,
deep knowledge of memory impacts you. Do you find yourself
like not trusting your own memory at times?
Speaker 2 (21:41):
Well, the one experience that I do have from all
these decades of doing this kind of work is I
understand that along with those like sort of bits of
truth are bits of fiction intermingled in there. And I'm
not bothered by that. I understand, and that's part of
(22:01):
the malleable nature of memory. I think what this acceptance
has done for me is it makes me a little
bit more tolerant of the mistakes that friends make, or
family members make, or even I myself might make. I
don't immediately assume somebody is a big fat liar. They
(22:24):
could honestly have a false memory. And I think it's
a kind of kinder way to feel about people.
Speaker 1 (22:30):
Okay, so that's pretty interesting. Do you think this same
kindness as you refer to it, that you offer let's say,
your friends, your family, even yourself, do you think we
should offer witnesses the same kind of kindness in court cases.
Speaker 2 (22:46):
Do you want to call these people a liar or
do you want to accept the fact that maybe some
kind of process has led them to develop a set
of beliefs and things that feel to them like memory,
And it is kinder even in a court case. I
think sometimes for lawyers who are challenging these memories to
(23:09):
talk about them as potentially false memories rather than talk
about the accuser as being a big fat liar.
Speaker 1 (23:17):
So you're an expert witness in a lot of cases
that depend on eyewitness testimony. You know, we've talked a
lot throughout the course of this podcast about how some
expert witnesses aren't basing their testimony on good science or facts.
But you're not that kind of witness. I mean, you've
been studying memory for years and years, and you've done
(23:40):
experiments and you know, tested this with thousands of participants.
You have a lot of data to back up what
you're testifying to in court. But tell me, have you
ever heard of witness testifying in court or read their
testimony and it kind of made you think, well, this
isn't science at all. They're actually twisting this so much
(24:00):
that it's more like junk science.
Speaker 2 (24:03):
I guess what I've seen happen in some cases, and
this bothers me where I think opposing experts are introducing
junk science. It's about trauma. They want to introduce to
science that basically says traumatic memories are completely different. Traumatic memories,
(24:27):
you know, are stored in the body. Traumatic memories can
be relied on traumatic memories that kind of don't have
these same problems. In fact, traumatic memories operate under similar
in similar ways. They fade over time, they can be
influenced by post event information. They're just lots of features
(24:50):
of memory that are true, whether you're trying to remember
something that's upsetting or whether you're trying to remember something
that is a little bit more new and less emotional.
You see this in the movies all the time. They're
saying something like, I was so frightened when this happened.
I'll never forget that face as long as I live.
(25:12):
That's an expression of the belief that this traumatic memory
is sort of imprinted in the brain and is reliably
and solidly there, and you just need to read it out.
And that is not the way things work. With memory
in general, or even traumatic memories.
Speaker 1 (25:32):
So tell us more about that, because I do think
that when we hear about someone who has been raped
or there's been a violent attack, our instinct is that
we should believe them no matter what, right, like, why
would somebody make this up? So how do we reconcile
(25:53):
the desire to believe a victim, or the natural tendency
to believe a victim, with the knowledge that memories just
aren't the most reliable form of evidence.
Speaker 2 (26:06):
I think the way we reconcile all this is that
when there is somebody with an accusation, we certainly listen
to it and examine it. And we don't want to
uncritically accept every accusation, no matter how dubious. And we
don't want to routinely reject an accusation just because we
(26:29):
don't like how it sounds. So I do think there
is a way to reconcile these two seemingly conflictual driving forces.
But I don't think we forego our democratic principles and
and forget about the fact that we're proud to have
(26:49):
a legal system that respects the rights of the accused
to have a defense.
Speaker 1 (26:58):
Yeah, I mean, it's a tough to let right, because
I've had that instance just last week where you know,
I am defending someone who I believe to be innocent.
And you know, when people hear about the case, or
you tell them about the case, you know, at least
what's public knowledge. You know, their reaction is, well, why
(27:19):
would somebody make up, you know, a accusation of sexual
assault for instance. But the reality is is that they
may not be consciously making it up. It may not
be a conscious lie. It may just be that their
perception and what they think is their reliable memory is
just not correct. Now, look, I have my own ideas,
(27:43):
and you know, the Innocence Project, as you know, has
done a ton of policy work around this and trying
to get reform achieved in law enforcement across the country
and the way they go about instituting line up and
you know, eyewitness identifications. But you tell tell me what
(28:05):
you think. What do you think is a way that
we can reform the system so that eyewitness identification would
be more accurate.
Speaker 2 (28:13):
First of all, one thing that is important when law
enforcement is conducting some kind of test, whether it's with
photographs or whether it's with a live lineup, how do
you conduct the test. What instruction do you give to
the witness who conducts the test? Who are the fillers?
(28:33):
The people who are put in the set of photos
are put in the lineup along with your suspect. Each
of these issues is important, and there are best practices
that have been devised by scientists and very thoughtful people
in the legal field about what those best practices should be.
(28:55):
So best practice, the person conducting the test should not
know who the suspect is. That's one of the most
important things that In other words, the person conducting the test.
It should be what's called a double blind test. The
witness doesn't know who the suspect is and the person
conducting the test doesn't know who the suspect is. And
(29:17):
why that's important is because that means that the person
conducting the test cannot inadvertently queue the witness as to
who to pick, and the investigator cannot give feedback to
the witness, cannot say, good job, that's our suspect, that's
(29:37):
who we think did it. Another witness pick that same person.
This kind of feedback artificially inflates the confidence of the
witness and makes them a more powerful witness. At the
time of the trial more impervious to cross examination. It's
not a fair situation. So blind testing is one simple
(30:01):
reform that's been suggested. How about the instruction you give
to the witness. It's very important to have an unbiased
instruction to say to the witness, you know the person
may or may not be in this lineup. It's just
as important to exonerate the innocent as to find the
guilty person. You're trying to take pressure off of the witness.
(30:26):
Take the pressure off so they don't feel they've got
to pick someone anyone in order to solve the case.
So that's why that instruction is important. Then there are
other issues like who you put into the lineup. What
should the fillers look like? Do they just resemble the suspect? No,
they should also resemble the description that the witness gave.
(30:49):
So if the witness said, you know a skinny guy
with medium length hair, you want basically skinny people with
medium length hair fitting the description, not just fitting the
characteristics of the suspect.
Speaker 1 (31:07):
What is the biggest takeaway that you think our listeners
should have from today's episode.
Speaker 2 (31:14):
Just because somebody tells you something and they say it
with a lot of detail, and they say it with confidence,
and they even show emotion when they tell you. It
doesn't mean it really happened. It doesn't mean it really
happened exactly that way. You need independent corroboration to know
whether you're dealing with an authentic memory or one that
(31:39):
is a product of some other process imagination, suggestion, misinterpreting dreams,
or some other non authentic process.
Speaker 1 (31:54):
We always try to end each episode with a call
to action. So I've been thinking about the lessons today's
interview with Elizabeth and just how interesting, informative and really
eye opening it's been. When someone's freedom hangs in the balance,
we should leave open the possibility that when someone takes
a witness stand and claims to have watched a crime
(32:17):
unfold or says they are sure they saw the defendant
leaving the scene of a crime, they may not be
accurately conveying what happened, and not because they're intentionally lying
or even shading the truth, but their memory may have
been influenced in some way. So consider the surrounding circumstances,
Whether they were fed information, if there was a suggestion
(32:40):
about who may have committed the crime by a member
of law enforcement if the methods used to quote unquote
identify a perpetrator were influenced in a way that made
the accused stand out. And maybe it's not the most
reassuring thing that in an error. When it seems that
misinformation is rather popular and it's sometimes difficult to know
(33:01):
what the truth actually is. Here is yet another reason
to doubt our perception and reality. But remember, your willingness
to remain open to all credible possibilities may in fact
prevent the next wrongful conviction. Next week, on our final
(33:25):
episode of the season, we'll explore how what's known as
shaken baby syndrome has been used to falsely implicate people
in crimes they did not commit. We'll discuss this with
executive director of the Center for Integrity and Forensic Sciences,
Kate Judson. Wrongful Conviction Junk Science is a production of
(33:46):
Lava for Good Podcasts in association with Signal Company Number One.
Thanks to our executive producer Jason Flahm and the team
at Signal Company Number One, executive producer Kevin Wardis and
senior producers Kara Kornhaber and BRIT's. Our music was composed
by Jay Ralph You can follow me on Instagram at
dubin Josh. Follow the Wrongful Conviction podcast on Facebook and
(34:10):
on Instagram at Wrongful Conviction, and on Twitter at wrong
Conviction
Hosts And Creators
Lauren Bright Pacheco
Maggie Freleng
Jason Flom
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