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.
Learn more and get involved.
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Episode Transcript
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Speaker 1 (00:00):
It's a warm summer evening in Virginia, where a nine
one one operator answers a call. There's a woman on
the other end of the line. She says she's been attacked.
Police arrived at the victim's home and they take a statement.
The victim, a white woman, says that as she was
(00:22):
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 everything she could remember about
(00:43):
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 victim some vague details
about his life. He told her that he had quote
had other white women. The police escort the victims of
(01:06):
the hospital where a rape kid has 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, and now you're
(01:28):
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 don't care what they think.
(01:50):
You're planning your future together. One evening, you finish up
your ship at the theme parkain head to the office
to clock out. You see a cop there are 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 try to leave the office,
(02:13):
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
locked the door behind you every time you leave the house.
You say, yes, sir, I did hear about it? Do
(02:36):
you know who did it? The officer says he has
some questions and ask you if you'll come to the
police station with him. When you get there, the officer
takes you into a small room with the table and
a few chairs. He says, wait here, you'll stand in
as part of a police lineup, and I'll come back
and get you in a few minutes. It dawns on
(02:59):
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 locks
(03:19):
the door behind them. 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 dropping
(03:42):
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 this seems to matter someone. Some cop already
(04:03):
have 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 our 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 one a few
days ago is sitting in front of six pictures. An
(04:26):
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 mug shots
except for one yours. You've never been in trouble with
the law, and so you don't have a mug shot. Instead,
the cop that showed up at your job took a
(04:47):
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 mug shot, it's also
the only one that's p did it in color, so
it immediately grabs the woman's attention. She chooses your photo
and says, I think that's him. The officer comes back
(05:13):
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 or potential suspects.
The point of them is to see if the victim
can identify your face amongst others who are supposed to
resemble the suspect. None of these other people's faces were
(05:37):
in any of the photos the victims saw except for yours,
your color photo I D that's the only photo that
matches the face of anyone in this lineup. There's an
officer at the front of the room and he starts
barking out orders to you and the fillers stand there
(05:57):
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 other side of a one way mirror, but the
victim points you out. She says it's him. I'm sure
(06:21):
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 of how this woman mistook you for someone else.
You look nothing like the witness's original description of her attacker.
(06:46):
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
on your eighteen year old face. How could that picture
in her head, the memory of her attacker changed so
(07:06):
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
of eight women and four men. You were taught your
(07:26):
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
the jury comes back and find you guilty of rape, abduction, robbery,
(07:52):
and force sodomy. The judge sentences you to two hundred
and ten years in prison. Him after the sentences read,
you slowly looked behind you. You try to find your mom,
your family. You know they're sitting just behind you, but
(08:13):
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
was sentenced to life in prison, another man confessed to
(08:33):
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
Innocence Project and they took up his case. After years
(08:56):
of work, lawyers of the Innocence Project were finally able
to con vinced 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 man was a match, the man who had confessed
to the crime. After fifteen long years in prison, Marvin
(09:20):
walked free and became the 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
Innocence Project. I'm Josh Juban, civil rights and criminal defense attorney,
an innocence ambassador to the Innocence Project in New York. Today.
(09:44):
On wrongful conviction junk science, we examine eyewitness testimony. When
a witness points to a suspect and says that's the
person who committed this crime. There's nothing more convincing to
a jury, but it is dangerous lee inaccurate. Over two
thirds of people who are later exonerated based on DNA
(10:05):
evidence were convicted based on eyewitness testimony. It may sound
like a simple premise, but in order for eyewitness testimony
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,
(10:30):
so too can memories. In the early eighties, Professor Wilhelm Once,
the father of modern psychology, was giving a lecture at
the University of Leipzig in Germany. One of his students
(10:53):
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 the father
of psychology himself. After completing his studies, Hugo started working
at Harvard University, where he led the Experimental Psychology Lab.
(11:16):
Hugo was especially interested in the concrete, everyday applications of psychology.
He wanted to study if and how psychology impacted juries
and trial outcomes, and so he began to run experiments
on the memory of eyewitnesses. In one of his famous experiments,
(11:38):
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. Hugo had his
test subjects look closely at the photo, then he took
the photo away. Hugo then asked him open to do
questions about it, like what did you see in the photo.
(12:01):
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 called suggestive questions.
He asked, for example, did you see the stove in
the room. Many of the eyewitnesses answered yes, they saw
(12:22):
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 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
(12:46):
I'm about to do. Starting now, with his right hand,
Hugo took out a colorful disc and began 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,
(13:08):
he used his left hand again to take out a
cigarette case, open it, take out a cigarette, shut the
case with a loud click, and put it back into
his pocket. At a 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
(13:31):
not only able to show that witnesses might fabricate details
of a memory that never existed, but they 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
(13:55):
that they had no stake in lyne or making the
outcome of the events. A periotive 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
(14:17):
he or she was certain that all Hugo did was
spin a disc and 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 The
New York Times wrote that his studies had the potential
to revolutionize courtroom procedure and to quote, bring light and
(14:40):
order in domains were 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 evolutionized. To this day, countless innocent
(15:04):
men and women are sent to prison based on faulty
eyewitness testimony. Over half a century after Hugo's research was mocked,
psychologist Elizabeth Loft this 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
(15:27):
why it shouldn't be trusted as the gold standard of
evidence in a courtroom or in a police lineup. Many people, unfortunately,
believe that memory works like a recording device. You you
take in the information, you record it, you just play
it back the way some kind of video recorder would work,
(15:50):
And that is not really the way memory works. What
happens when we're remembering something is we we tend to
take bits and pieces of experience, sometimes from different times
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.
(16:14):
You can go in there and edit it, but so
can other people. Today on our show, we're speaking with
renowned psychologist Elizabeth Loft. This 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
(16:35):
huge factor in cases where eyewitness testimony is used as evidence. So, Elizabeth,
can you tell us about some of the experiments that
you worked on to study memories of eyewitnesses. You know,
one of the ways that I and my collaborators have
studied memory in hundreds of studies you know probably now
(17:00):
and participants over the course of my career. One of
the ways that we study memory is will show people
a simulated crime. For example, we will then expose people
to some new information about that crime. So they might
have seen a bad guy take a wallet out of
(17:22):
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, we will
ask our witnesses, tell me exactly what you saw, give
me as much detail as you can remember, and many
(17:42):
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 impairs
our own memory, and this is now referred to in
(18:03):
the psychological literature as the misinformation effect. So give me
another example. What are some other experiments you did where
misinformation just kind of gets slipped into the person's memory
with without them even knowing it. We've shown people a
simulated accident, a car goes through an intersection with a
(18:26):
yield sign and then ends up hitting up pedestrian and
pedestrian falls over. A police officer comes to tend to
the pedestrian who is lying down on the on the ground. Afterwards,
are our witnesses are asked a series of questions, and
one of those questions might be did another car pass
(18:48):
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 wind.
Just think I'm asking you about whether another car passed
while the dots and was stopped. You revisualized 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 stopped, But this
stop sign kind of invade 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
to scenes the scene with a stop sign or the
scene with a yield sign. They'll pick the one with
the stop sign. They have succumbed to the question and
fallen sway to its suggestion, and now it appears as
if this is their memory. Now I want to get
(20:04):
back to the way cops influenza witness. UM. 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 you dealt with anything like
(20:26):
that in your research. One of my favorite examples the
case I testified in uh in California. There's a crime,
the eyewitness has shown a six pack six photographs. The
eyewitness says, I I really don't recognize anybody, and the
officer says, wait a minute, I see your eyes drifting
(20:49):
down to number six. What's going 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
(21:11):
aware in a way of their own influence. UM, And
and that a lot of what's happening is kind of unwitting.
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,
(21:34):
deep knowledge of memory impacts you. Do you find yourself
like not trusting your own memory at times? Well, the
one experience that I do have from all these decades
of doing this kind of work is I understand, um
that along with those like sort of bits of truth
are bits of fiction intermingled in there. And I'm not
(21:58):
bothered by that. I understand that's part of the 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
(22:21):
immediately assume somebody's a big, fat liar. They could honestly
have a false memory. And I think it's a kind
of kinder way to feel about people. 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
(22:41):
witnesses the same kind of kindness in court cases. 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
(23:04):
sometimes for for lawyers who are challenging these memories to
talk about them as potentially false memories rather than talk
about the accuser as being a big fat liar. So
you're an expert witness in a lot of cases that
depend on eyewitness testimony. You know, we've talked a lot
(23:24):
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
experiments and um, you know, tested this with thousands of participants.
(23:45):
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
that it's more like junk science. I guess what I've
seen happen in some cases, and this bothers me where
(24:09):
I think opposing experts are introducing junk science. It's about trauma.
They want to introduce a science that basically says traumatic
memories are are completely different. Traumatic memories, you know, are
stored in the body. Traumatic memories can be relied on
(24:32):
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. There. There's just lots of features of memory
that are true, whether you're trying to remember something that's
(24:54):
upsetting or whether you're trying to remember something that is
a little bit um more new role 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.
That's an expression of the belief that this traumatic memory
(25:17):
is sort of imprinted in the brain and it is
reliably and solidly there and you just need to read
it out. And that is not the way things work
with with memory in general, or even traumatic memories. So
tell us more about that, because I do think that
when we hear about someone who has been, you know, raped,
(25:40):
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
the desire to believe a victim, or the natural tendency
to believe a victim, with the knowledge that memories just
(26:02):
aren't the most reliable form of evidence. I think the
way we reconcile all this is that when there is
somebody with an accusation, we 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
(26:24):
to routinely reject an accusation just because we don't like
how it sounds. So I do think there there is
a way to reconcile these two seemingly conflictual driving forces.
But I don't think we forego our democratic principles and
(26:45):
and and forget about the fact that that we're proud
to have a legal system that respects the rights of
the accused to have a defense. Yeah, I mean it's
a tough delem right, because I've had that instance just
last week where you know, I am defending someone who
(27:08):
I believe to be innocent. And you know, I when
when people hear about the case, or you tell them
about the case, you know at least what's public knowledge.
You know, the reaction is, well, why would somebody make up, um,
you know, a accusation of sexual assault for instance. But
the reality is that they may not be consciously making
(27:30):
it up. It may not be a conscious lie. It
may just be that their perception um and they're what
they think is their reliable memory is just not correct. Now, look,
I have my own ideas, and you know, the Innocence Project,
as you know, has done a ton of policy work
around this and trying to get reform um achieved in
(27:53):
law enforcement across the country and the way they go about,
um instituting line ups and you know, eyewitness identifications. But
you tell tell me what you think. What do you
think is a way that we can reform the system
so that eyewitness identification would be more accurate. First of all,
(28:14):
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 were the fillers? The people who are
put in the set of photos are put in the
(28:36):
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. So best practice, the
(28:57):
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 should 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 why that's important is
(29:19):
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, um, that's who we think
did at another witness picked that same person. This kind
(29:43):
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 reform that's
been suggested. How about the instruction you give to the witness.
(30:07):
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. Take the
pressure off so they don't feel they've got to pick
(30:28):
someone anyone, uh, 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, um, you want basically skinny people
with medium length hair fitting the description, not just fitting
the characteristics of the suspect. What is the biggest takeaway
that you think our listeners should have from today's episode.
(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
(31:34):
whether you're dealing with an authentic memory or one that
is the product of some other process imagination, suggestion, misinterpreting dreams,
or some other non authentic process. We always try to
(31:55):
end each episode with a call to action. So I've
been thinking about the lessons for 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 unfold or
(32:18):
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 considered the surrounding circumstances, whether they
were fed information, if there was this suggestion about who
(32:41):
may have committed the crime by a member of law enforcement,
if the methods used to quote unquote identify a perpetrator
or 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 what the truth actually is.
(33:03):
Here is yet another reason to doubt our perception of reality.
But remember, your willingness to remain open to all credible
possibilities may in fact prevent the next wrongful conviction. Next week,
(33:24):
on our final episode of the season, we'll explore how
what's known as shaking 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
(33:45):
a production of Lava for Good Podcasts in association with
Signal Company Number One. Thanks to our executive producer Jason
Flom and the team, it's Signal Company number One Executive
producer Kevin Wardis and senior producers care Cornaber and Britt's Angler.
Our music was composed by j Ralph. You can follow
me on Instagram at dubin Dot. Josh followed the Wrongful
(34:07):
Conviction podcast on Facebook and on Instagram at Wrongful Conviction
and on Twitter at wrong Conviction
It's a warm summer evening in Virginia, where a nine
one one operator answers a call. There's a woman on
the other end of the line. She says she's been attacked.
Police arrived at the victim's home and they take a statement.
The victim, a white woman, says that as she was
(00:22):
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 everything she could remember about
(00:43):
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 victim some vague details
about his life. He told her that he had quote
had other white women. The police escort the victims of
(01:06):
the hospital where a rape kid has 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, and now you're
(01:28):
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 don't care what they think.
(01:50):
You're planning your future together. One evening, you finish up
your ship at the theme parkain head to the office
to clock out. You see a cop there are 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 try to leave the office,
(02:13):
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
locked the door behind you every time you leave the house.
You say, yes, sir, I did hear about it? Do
(02:36):
you know who did it? The officer says he has
some questions and ask you if you'll come to the
police station with him. When you get there, the officer
takes you into a small room with the table and
a few chairs. He says, wait here, you'll stand in
as part of a police lineup, and I'll come back
and get you in a few minutes. It dawns on
(02:59):
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 locks
(03:19):
the door behind them. 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 dropping
(03:42):
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 this seems to matter someone. Some cop already
(04:03):
have 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 our 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 one a few
days ago is sitting in front of six pictures. An
(04:26):
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 mug shots
except for one yours. You've never been in trouble with
the law, and so you don't have a mug shot. Instead,
the cop that showed up at your job took a
(04:47):
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 mug shot, it's also
the only one that's p did it in color, so
it immediately grabs the woman's attention. She chooses your photo
and says, I think that's him. The officer comes back
(05:13):
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 or potential suspects.
The point of them is to see if the victim
can identify your face amongst others who are supposed to
resemble the suspect. None of these other people's faces were
(05:37):
in any of the photos the victims saw except for yours,
your color photo I D that's the only photo that
matches the face of anyone in this lineup. There's an
officer at the front of the room and he starts
barking out orders to you and the fillers stand there
(05:57):
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 other side of a one way mirror, but the
victim points you out. She says it's him. I'm sure
(06:21):
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 of how this woman mistook you for someone else.
You look nothing like the witness's original description of her attacker.
(06:46):
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
on your eighteen year old face. How could that picture
in her head, the memory of her attacker changed so
(07:06):
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
of eight women and four men. You were taught your
(07:26):
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
the jury comes back and find you guilty of rape, abduction, robbery,
(07:52):
and force sodomy. The judge sentences you to two hundred
and ten years in prison. Him after the sentences read,
you slowly looked behind you. You try to find your mom,
your family. You know they're sitting just behind you, but
(08:13):
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
was sentenced to life in prison, another man confessed to
(08:33):
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
Innocence Project and they took up his case. After years
(08:56):
of work, lawyers of the Innocence Project were finally able
to con vinced 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 man was a match, the man who had confessed
to the crime. After fifteen long years in prison, Marvin
(09:20):
walked free and became the 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
Innocence Project. I'm Josh Juban, civil rights and criminal defense attorney,
an innocence ambassador to the Innocence Project in New York. Today.
(09:44):
On wrongful conviction junk science, we examine eyewitness testimony. When
a witness points to a suspect and says that's the
person who committed this crime. There's nothing more convincing to
a jury, but it is dangerous lee inaccurate. Over two
thirds of people who are later exonerated based on DNA
(10:05):
evidence were convicted based on eyewitness testimony. It may sound
like a simple premise, but in order for eyewitness testimony
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,
(10:30):
so too can memories. In the early eighties, Professor Wilhelm Once,
the father of modern psychology, was giving a lecture at
the University of Leipzig in Germany. One of his students
(10:53):
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 the father
of psychology himself. After completing his studies, Hugo started working
at Harvard University, where he led the Experimental Psychology Lab.
(11:16):
Hugo was especially interested in the concrete, everyday applications of psychology.
He wanted to study if and how psychology impacted juries
and trial outcomes, and so he began to run experiments
on the memory of eyewitnesses. In one of his famous experiments,
(11:38):
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. Hugo had his
test subjects look closely at the photo, then he took
the photo away. Hugo then asked him open to do
questions about it, like what did you see in the photo.
(12:01):
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 called suggestive questions.
He asked, for example, did you see the stove in
the room. Many of the eyewitnesses answered yes, they saw
(12:22):
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 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
(12:46):
I'm about to do. Starting now, with his right hand,
Hugo took out a colorful disc and began 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,
(13:08):
he used his left hand again to take out a
cigarette case, open it, take out a cigarette, shut the
case with a loud click, and put it back into
his pocket. At a 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
(13:31):
not only able to show that witnesses might fabricate details
of a memory that never existed, but they 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
(13:55):
that they had no stake in lyne or making the
outcome of the events. A periotive 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
(14:17):
he or she was certain that all Hugo did was
spin a disc and 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 The
New York Times wrote that his studies had the potential
to revolutionize courtroom procedure and to quote, bring light and
(14:40):
order in domains were 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 evolutionized. To this day, countless innocent
(15:04):
men and women are sent to prison based on faulty
eyewitness testimony. Over half a century after Hugo's research was mocked,
psychologist Elizabeth Loft this 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
(15:27):
why it shouldn't be trusted as the gold standard of
evidence in a courtroom or in a police lineup. Many people, unfortunately,
believe that memory works like a recording device. You you
take in the information, you record it, you just play
it back the way some kind of video recorder would work,
(15:50):
And that is not really the way memory works. What
happens when we're remembering something is we we tend to
take bits and pieces of experience, sometimes from different times
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.
(16:14):
You can go in there and edit it, but so
can other people. Today on our show, we're speaking with
renowned psychologist Elizabeth Loft. This 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
(16:35):
huge factor in cases where eyewitness testimony is used as evidence. So, Elizabeth,
can you tell us about some of the experiments that
you worked on to study memories of eyewitnesses. You know,
one of the ways that I and my collaborators have
studied memory in hundreds of studies you know probably now
(17:00):
and participants over the course of my career. One of
the ways that we study memory is will show people
a simulated crime. For example, we will then expose people
to some new information about that crime. So they might
have seen a bad guy take a wallet out of
(17:22):
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, we will
ask our witnesses, tell me exactly what you saw, give
me as much detail as you can remember, and many
(17:42):
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 impairs
our own memory, and this is now referred to in
(18:03):
the psychological literature as the misinformation effect. So give me
another example. What are some other experiments you did where
misinformation just kind of gets slipped into the person's memory
with without them even knowing it. We've shown people a
simulated accident, a car goes through an intersection with a
(18:26):
yield sign and then ends up hitting up pedestrian and
pedestrian falls over. A police officer comes to tend to
the pedestrian who is lying down on the on the ground. Afterwards,
are our witnesses are asked a series of questions, and
one of those questions might be did another car pass
(18:48):
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 wind.
Just think I'm asking you about whether another car passed
while the dots and was stopped. You revisualized 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 stopped, But this
stop sign kind of invade 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
to scenes the scene with a stop sign or the
scene with a yield sign. They'll pick the one with
the stop sign. They have succumbed to the question and
fallen sway to its suggestion, and now it appears as
if this is their memory. Now I want to get
(20:04):
back to the way cops influenza witness. UM. 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 you dealt with anything like
(20:26):
that in your research. One of my favorite examples the
case I testified in uh in California. There's a crime,
the eyewitness has shown a six pack six photographs. The
eyewitness says, I I really don't recognize anybody, and the
officer says, wait a minute, I see your eyes drifting
(20:49):
down to number six. What's going 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
(21:11):
aware in a way of their own influence. UM, And
and that a lot of what's happening is kind of unwitting.
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,
(21:34):
deep knowledge of memory impacts you. Do you find yourself
like not trusting your own memory at times? Well, the
one experience that I do have from all these decades
of doing this kind of work is I understand, um
that along with those like sort of bits of truth
are bits of fiction intermingled in there. And I'm not
(21:58):
bothered by that. I understand that's part of the 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
(22:21):
immediately assume somebody's a big, fat liar. They could honestly
have a false memory. And I think it's a kind
of kinder way to feel about people. 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
(22:41):
witnesses the same kind of kindness in court cases. 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
(23:04):
sometimes for for lawyers who are challenging these memories to
talk about them as potentially false memories rather than talk
about the accuser as being a big fat liar. So
you're an expert witness in a lot of cases that
depend on eyewitness testimony. You know, we've talked a lot
(23:24):
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
experiments and um, you know, tested this with thousands of participants.
(23:45):
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
that it's more like junk science. I guess what I've
seen happen in some cases, and this bothers me where
(24:09):
I think opposing experts are introducing junk science. It's about trauma.
They want to introduce a science that basically says traumatic
memories are are completely different. Traumatic memories, you know, are
stored in the body. Traumatic memories can be relied on
(24:32):
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. There. There's just lots of features of memory
that are true, whether you're trying to remember something that's
(24:54):
upsetting or whether you're trying to remember something that is
a little bit um more new role 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.
That's an expression of the belief that this traumatic memory
(25:17):
is sort of imprinted in the brain and it is
reliably and solidly there and you just need to read
it out. And that is not the way things work
with with memory in general, or even traumatic memories. So
tell us more about that, because I do think that
when we hear about someone who has been, you know, raped,
(25:40):
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
the desire to believe a victim, or the natural tendency
to believe a victim, with the knowledge that memories just
(26:02):
aren't the most reliable form of evidence. I think the
way we reconcile all this is that when there is
somebody with an accusation, we 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
(26:24):
to routinely reject an accusation just because we don't like
how it sounds. So I do think there there is
a way to reconcile these two seemingly conflictual driving forces.
But I don't think we forego our democratic principles and
(26:45):
and and forget about the fact that that we're proud
to have a legal system that respects the rights of
the accused to have a defense. Yeah, I mean it's
a tough delem right, because I've had that instance just
last week where you know, I am defending someone who
(27:08):
I believe to be innocent. And you know, I when
when people hear about the case, or you tell them
about the case, you know at least what's public knowledge.
You know, the reaction is, well, why would somebody make up, um,
you know, a accusation of sexual assault for instance. But
the reality is that they may not be consciously making
(27:30):
it up. It may not be a conscious lie. It
may just be that their perception um and they're what
they think is their reliable memory is just not correct. Now, look,
I have my own ideas, and you know, the Innocence Project,
as you know, has done a ton of policy work
around this and trying to get reform um achieved in
(27:53):
law enforcement across the country and the way they go about,
um instituting line ups and you know, eyewitness identifications. But
you tell tell me what you think. What do you
think is a way that we can reform the system
so that eyewitness identification would be more accurate. First of all,
(28:14):
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 were the fillers? The people who are
put in the set of photos are put in the
(28:36):
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. So best practice, the
(28:57):
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 should 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 why that's important is
(29:19):
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, um, that's who we think
did at another witness picked that same person. This kind
(29:43):
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 reform that's
been suggested. How about the instruction you give to the witness.
(30:07):
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. Take the
pressure off so they don't feel they've got to pick
(30:28):
someone anyone, uh, 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, um, you want basically skinny people
with medium length hair fitting the description, not just fitting
the characteristics of the suspect. What is the biggest takeaway
that you think our listeners should have from today's episode.
(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
(31:34):
whether you're dealing with an authentic memory or one that
is the product of some other process imagination, suggestion, misinterpreting dreams,
or some other non authentic process. We always try to
(31:55):
end each episode with a call to action. So I've
been thinking about the lessons for 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 unfold or
(32:18):
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 considered the surrounding circumstances, whether they
were fed information, if there was this suggestion about who
(32:41):
may have committed the crime by a member of law enforcement,
if the methods used to quote unquote identify a perpetrator
or 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 what the truth actually is.
(33:03):
Here is yet another reason to doubt our perception of reality.
But remember, your willingness to remain open to all credible
possibilities may in fact prevent the next wrongful conviction. Next week,
(33:24):
on our final episode of the season, we'll explore how
what's known as shaking 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
(33:45):
a production of Lava for Good Podcasts in association with
Signal Company Number One. Thanks to our executive producer Jason
Flom and the team, it's Signal Company number One Executive
producer Kevin Wardis and senior producers care Cornaber and Britt's Angler.
Our music was composed by j Ralph. You can follow
me on Instagram at dubin Dot. Josh followed the Wrongful
(34:07):
Conviction podcast on Facebook and 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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