WEBVTT - #170 Wrongful Conviction: Junk Science - Eyewitness Testimony 0:00:00.560 --> 0:00:04.040 It's a warm summer evening in Virginia, where a nine 0:00:04.080 --> 0:00:07.360 to one to one operator answers a call. There's a 0:00:07.360 --> 0:00:10.400 woman on the other end of the line. She says 0:00:10.920 --> 0:00:17.119 she's been attacked. Police arrive at the victim's home and 0:00:17.160 --> 0:00:21.600 they take a statement. The victim, a white woman, says 0:00:21.640 --> 0:00:24.320 that as she was walking to her apartment, she came 0:00:24.360 --> 0:00:28.200 across a man laying on the ground. He was clutching 0:00:28.200 --> 0:00:30.920 his leg. She thought he must have fallen off the 0:00:30.920 --> 0:00:33.800 bike that was toppled over next to him, so she 0:00:33.880 --> 0:00:37.000 bent down to help him, and that's when he grabbed her, 0:00:37.760 --> 0:00:42.120 beat her, and raped her. The victim told the police 0:00:42.320 --> 0:00:45.720 everything she could remember about her attacker. She said the 0:00:45.720 --> 0:00:49.880 man was black with a light complexion. He had a mustache, 0:00:50.320 --> 0:00:54.640 a beard, and some scratches on his face. Before the 0:00:54.680 --> 0:00:57.400 attacker left the scene of the crime, he told the 0:00:57.480 --> 0:01:01.120 victims some vague details about his life. He told her 0:01:01.120 --> 0:01:05.120 that he had quote had other white women. The police 0:01:05.240 --> 0:01:08.200 escort the victims to the hospital, where a rape kit 0:01:08.319 --> 0:01:19.240 is taken and sent off to a crime lab. You're 0:01:19.280 --> 0:01:23.800 eighteen years old, just graduated from high school. Since you 0:01:23.800 --> 0:01:26.840 were thirteen, you knew that you wanted to be a firefighter, 0:01:27.600 --> 0:01:31.120 and now you're doing it. You're attending the fire academy 0:01:31.120 --> 0:01:34.920 this summer. You're also working at a theme park, collecting 0:01:34.959 --> 0:01:38.520 tickets running the rides. It's not the most glamorous job, 0:01:38.560 --> 0:01:42.959 but hey pays the rent. A few months ago, you 0:01:43.040 --> 0:01:45.200 moved out of your parents' house and into an apartment 0:01:45.240 --> 0:01:49.000 with your girlfriend. Everyone says you're too young, but you 0:01:49.040 --> 0:01:52.240 don't care what they think. You're planning your future together. 0:01:53.400 --> 0:01:55.880 One evening, you finish up your shift at the theme 0:01:55.920 --> 0:01:59.200 park and head to the office to clock out. You 0:01:59.240 --> 0:02:02.600 see a cop there chatting with your boss. You don't 0:02:02.600 --> 0:02:05.680 think much of it. There's always some security or police 0:02:05.720 --> 0:02:08.600 at the park. But then you see your boss sort 0:02:08.600 --> 0:02:11.680 of flick his head in your direction, and when you 0:02:11.720 --> 0:02:17.240 try to leave the office, the cops stops you. He says, hey, 0:02:17.320 --> 0:02:19.760 let me talk to you for a minute. Have you 0:02:19.800 --> 0:02:22.120 heard about the rape that took place a few days ago, 0:02:22.400 --> 0:02:25.640 not too far from here. It's like he knew that 0:02:25.720 --> 0:02:28.560 this crime had been on your mind. You've been making 0:02:28.600 --> 0:02:31.120 your girlfriend lock the door behind you every time you 0:02:31.240 --> 0:02:35.239 leave the house. You say, yes, sir, I did hear 0:02:35.280 --> 0:02:39.079 about it? Do you know who did it? The officer 0:02:39.080 --> 0:02:41.560 says he has some questions and asks you if you'll 0:02:41.600 --> 0:02:45.240 come to the police station with him. When you get there, 0:02:45.680 --> 0:02:48.160 the officer takes you into a small room with a 0:02:48.280 --> 0:02:52.960 table and a few chairs. He says, wait here, you'll 0:02:53.000 --> 0:02:55.600 stand in as part of a police lineup, and I'll 0:02:55.600 --> 0:02:58.760 come back and get you in a few minutes. It 0:02:58.880 --> 0:03:02.200 dawns on you you're not just here to answer questions. 0:03:02.800 --> 0:03:06.160 You're a suspect in this crime. You call out to 0:03:06.200 --> 0:03:10.520 the officer, Wait, what am I doing here? He says, 0:03:11.440 --> 0:03:14.880 the rapists said that he had been with other white women. 0:03:15.480 --> 0:03:19.480 Don't you live with your white girlfriend? He closes and 0:03:19.520 --> 0:03:24.600 locks the door behind him. You lean over in your 0:03:24.639 --> 0:03:28.280 seat and cover your face with your hands. Who would 0:03:28.320 --> 0:03:32.640 have known information about your personal life and try to 0:03:32.760 --> 0:03:36.360 use it against you? Was it one of those cops 0:03:36.400 --> 0:03:38.680 that used to stop by the fire station when you 0:03:38.720 --> 0:03:42.400 were at the training academy. Maybe they saw your girlfriend 0:03:42.520 --> 0:03:46.240 dropping off dinner at the fire station one night. You 0:03:46.280 --> 0:03:50.080 stop and take a deep breath, reminding yourself that being 0:03:50.120 --> 0:03:53.600 a black man living with your white girlfriend isn't a crime. 0:03:54.320 --> 0:03:58.800 At least it's not supposed to be not anymore. And 0:03:58.920 --> 0:04:02.640 yet none of this seems to matter someone. Some cop 0:04:03.160 --> 0:04:06.320 already had their eye on you for this very reason, 0:04:07.320 --> 0:04:09.960 But you didn't do anything wrong, and you're hopeful that 0:04:09.960 --> 0:04:13.000 the victim's memory of her attacker will set things straight. 0:04:14.560 --> 0:04:17.280 What you don't know is that just down the hall 0:04:17.320 --> 0:04:20.440 from where you're sitting, the woman who called nine to 0:04:20.480 --> 0:04:23.720 one one a few days ago is sitting in front 0:04:23.760 --> 0:04:27.680 of six pictures. An officer tells her to pick out 0:04:27.720 --> 0:04:31.080 the face of the man who attacked her. All of 0:04:31.080 --> 0:04:34.040 the photos set out in front of her are black 0:04:34.120 --> 0:04:39.640 and white mugshots except for one, yours. You've never been 0:04:39.680 --> 0:04:42.200 in trouble with the law, and so you don't have 0:04:42.240 --> 0:04:46.640 a mugshot. Instead, the cop that showed up at your 0:04:46.760 --> 0:04:50.040 job took a picture of your ID card from the 0:04:50.040 --> 0:04:54.679 theme park and slipped it into the photo lineup. Yours 0:04:54.760 --> 0:04:57.480 is not just the only one that's not a mugshot, 0:04:57.839 --> 0:05:01.719 it's also the only one that's p in color, so 0:05:01.800 --> 0:05:07.039 it immediately grabs the woman's attention. She chooses your photo 0:05:07.120 --> 0:05:14.000 and says, I think that's him. The officer comes back 0:05:14.040 --> 0:05:16.800 in to get you. He brings you into a room 0:05:16.839 --> 0:05:19.120 with a window in it and asks you to stand 0:05:19.160 --> 0:05:22.320 in a line with some men. These other men are 0:05:22.360 --> 0:05:26.200 known as fillers. None of these fillers are potential suspects. 0:05:27.040 --> 0:05:29.479 The point of them is to see if the victim 0:05:29.480 --> 0:05:33.039 can identify your face amongst others who are supposed to 0:05:33.080 --> 0:05:37.279 resemble the suspect. None of these other people's faces were 0:05:37.279 --> 0:05:41.160 in any of the photos the victim saw except for yours, 0:05:42.000 --> 0:05:46.400 your color photo ID. That's the only photo that matches 0:05:46.440 --> 0:05:50.760 the face of anyone in this lineup. There's an officer 0:05:50.800 --> 0:05:53.360 at the front of the room and he starts barking 0:05:53.400 --> 0:05:57.880 out orders to you and the fillers. Stand there and 0:05:57.880 --> 0:06:05.320 look straight ahead. Now turn to your right, Now turn 0:06:05.360 --> 0:06:08.680 to your left. You follow the directions that are being 0:06:08.720 --> 0:06:12.960 shouted out. You can't see her because she's on the 0:06:13.040 --> 0:06:16.160 other side of a one way mirror, but the victim 0:06:16.600 --> 0:06:21.960 points you out. She says it's him. I'm sure of it, 0:06:23.279 --> 0:06:26.320 And that's all the information the cops need to hear, 0:06:27.320 --> 0:06:32.760 and you are arrested on the spot. You sit in 0:06:32.880 --> 0:06:36.800 jail wondering what in the world you're supposed to make 0:06:37.000 --> 0:06:41.320 of how this woman mistook you for someone else. You 0:06:41.440 --> 0:06:45.160 look nothing like the witness's original description of her attacker. 0:06:46.040 --> 0:06:50.040 She'd reported that he had light skin, a mustache, a beard, 0:06:50.160 --> 0:06:54.320 and scratches on his face. You have dark skin, You're 0:06:54.360 --> 0:06:58.480 almost always clean shaven. There are no scratches or marks 0:06:58.480 --> 0:07:01.719 on your eighteen year old face. How could that picture 0:07:01.839 --> 0:07:05.839 in her head, the memory of her attacker, change so 0:07:06.120 --> 0:07:10.240 much in such a short amount of time. What is 0:07:10.280 --> 0:07:17.760 it about that lineup that made her choose you? You 0:07:17.880 --> 0:07:21.400 eventually stand trial in front of an all white jury 0:07:21.640 --> 0:07:26.000 of eight women and four men. You were taught your 0:07:26.200 --> 0:07:29.960 entire life to trust law enforcement, to believe in this 0:07:30.080 --> 0:07:35.800 system of justice. The police, officers, judges, lawyers, jurors. They 0:07:35.800 --> 0:07:38.800 were all there to figure out the truth, to do 0:07:38.880 --> 0:07:44.360 the right thing. But that image comes shattering down when 0:07:44.440 --> 0:07:51.600 the jury comes back and finds you guilty of rape, abduction, robbery, 0:07:52.200 --> 0:07:58.200 and for sodomy. The judge sentences you to two hundred 0:07:58.640 --> 0:08:03.280 and ten years in prison. After the sentence is read, 0:08:04.040 --> 0:08:08.320 you slowly look behind you. You try to find your mom, 0:08:08.640 --> 0:08:12.920 your family. You know they're sitting just behind you, but 0:08:13.000 --> 0:08:19.080 you can't see a foot ahead of you. Everything goes black. 0:08:23.360 --> 0:08:25.760 The story you just heard is based on the true 0:08:25.800 --> 0:08:30.200 events of Marvin Anderson's wrongful conviction six years after he 0:08:30.280 --> 0:08:33.559 was sentenced to life in prison, another man confessed to 0:08:33.640 --> 0:08:37.680 attacking the woman who had misidentified Marvin. The man that 0:08:37.800 --> 0:08:41.800 confessed presented new details to a judge that seemed to 0:08:41.840 --> 0:08:46.640 prove his guilt in Marvin's innocence. Still, the judge did 0:08:46.679 --> 0:08:50.760 not vacate marvin sentence. Marvin wrote a letter to the 0:08:50.760 --> 0:08:56.160 Innocence Project and they took up his case. After years 0:08:56.160 --> 0:08:59.680 of work, lawyers of the Innocence Project were finally able 0:08:59.720 --> 0:09:03.240 to convinced the judge to compare Marvin's DNA with the 0:09:03.360 --> 0:09:06.560 DNA from seamen recovered from the victim. When the rape 0:09:06.600 --> 0:09:11.120 kit was performed, Marvin was not a match, but another 0:09:11.240 --> 0:09:14.840 man was a match, the man who had confessed to 0:09:14.920 --> 0:09:21.000 the crime. After fifteen long years in prison, Marvin walked 0:09:21.040 --> 0:09:24.920 free and became the ninety ninth person to be exonerated 0:09:24.920 --> 0:09:29.559 based on DNA evidence. He's since become chief of the Hanover, 0:09:29.720 --> 0:09:32.960 Virginia Fire Department and serves on the board of the 0:09:32.960 --> 0:09:39.680 Innocence Project. I'm Josh Dubin civil rights and criminal defense attorney, 0:09:40.000 --> 0:09:44.160 an innocent ambassador to the Innocence Project in New York. Today, 0:09:44.559 --> 0:09:50.559 on Wrongful Conviction junk Science, we examine eyewitness testimony when 0:09:50.600 --> 0:09:53.600 a witness points to a suspect and says that's the 0:09:53.679 --> 0:09:57.320 person who committed this crime. There is nothing more convincing 0:09:57.360 --> 0:10:02.559 to a jury, but it is dangerous inaccurate. Over two 0:10:02.600 --> 0:10:05.880 thirds of people who were later exonerated based on DNA 0:10:06.000 --> 0:10:11.600 evidence were convicted based on eyewitness testimony. It may sound 0:10:11.679 --> 0:10:15.560 like a simple premise, but in order for eyewitness testimony 0:10:15.600 --> 0:10:19.160 to work and be reliable, we need to rely on 0:10:19.200 --> 0:10:23.920 our own memories and those of others. But it turns out, 0:10:24.840 --> 0:10:29.800 just as physical evidence can be manipulated, contaminated, or even planted, 0:10:30.720 --> 0:10:44.720 so too can memories. In the early eighteen eighties, Professor 0:10:44.760 --> 0:10:48.679 Wilhelm Want, the father of modern psychology, was giving a 0:10:48.760 --> 0:10:52.480 lecture at the University of Leipzig in Germany. One of 0:10:52.480 --> 0:10:57.199 his students attending the lecture was Hugo Munsterberg and Hugo 0:10:57.600 --> 0:11:01.240 when he heard this lecture, he was hooked. He was 0:11:01.440 --> 0:11:05.200 so fascinated by psychology and he began to study under 0:11:05.240 --> 0:11:10.840 the father of psychology himself. After completing his studies, Hugo 0:11:10.920 --> 0:11:14.680 started working at Harvard University, where he led the Experimental 0:11:14.720 --> 0:11:20.800 Psychology Lab. Hugo was especially interested in the concrete everyday 0:11:20.840 --> 0:11:25.640 applications of psychology. He wanted to study if and how 0:11:25.840 --> 0:11:30.800 psychology impacted juries and trial outcomes, and so he began 0:11:30.880 --> 0:11:35.800 to run experiments on the memory of eyewitnesses. In one 0:11:35.840 --> 0:11:39.800 of his famous experiments, Hugo tested the memories of both 0:11:39.840 --> 0:11:44.120 adults and children. He showed them a photo. In it, 0:11:44.520 --> 0:11:48.400 there was a farmer sitting at a table eating some soup. 0:11:49.640 --> 0:11:52.480 Hugo had his test subjects looked closely at the photo, 0:11:53.200 --> 0:11:56.600 then he took the photo away. Hugo then asked him 0:11:56.600 --> 0:11:59.720 opened endo questions about it, like what did you see 0:11:59.760 --> 0:12:04.120 in the photo. To these questions, the witnesses responded there 0:12:04.200 --> 0:12:07.319 was a man in the photo eating his soup. Their 0:12:07.400 --> 0:12:12.640 memories were accurate, But then Hugo started asking what he 0:12:12.720 --> 0:12:17.440 called suggestive questions. He asked, for example, did you see 0:12:17.440 --> 0:12:21.839 the stove in the room. Many of the eyewitnesses answered yes, 0:12:22.320 --> 0:12:25.520 they saw the stove, but there was no stove in 0:12:25.559 --> 0:12:30.920 the photo. Hugo found that through asking suggestive questions like these, 0:12:31.440 --> 0:12:34.040 he was able to get his test subjects to remember 0:12:34.240 --> 0:12:38.760 dozens of objects in the photo that never existed. In 0:12:38.800 --> 0:12:42.480 another experiment, Hugo sat at a desk at the front 0:12:42.480 --> 0:12:46.679 of a room and told his students, remember every detail 0:12:46.679 --> 0:12:51.600 of what I'm about to do. Starting now. With his 0:12:51.760 --> 0:12:54.960 right hand, Hugo took out a colorful disk and began 0:12:55.040 --> 0:12:58.200 to spin it. While staring at the disk that he 0:12:58.280 --> 0:13:01.200 was spinning with his right hand, he used his left 0:13:01.200 --> 0:13:04.000 hand to take out a pencil and write something down 0:13:04.080 --> 0:13:07.280 on a piece of paper, Keeping that disk spinning in 0:13:07.320 --> 0:13:10.240 his right hand, he used his left hand again to 0:13:10.320 --> 0:13:14.679 take out a cigarette case, open it, take out a cigarette, 0:13:15.320 --> 0:13:17.920 shut the case with a loud click, and put it 0:13:18.000 --> 0:13:22.720 back into his pocket. At one hundred students who saw 0:13:22.760 --> 0:13:27.240 this demonstration, only eighteen of them were able to report 0:13:27.280 --> 0:13:30.440 what Hugo had done with his left hand, and so 0:13:30.640 --> 0:13:33.600 Hugo was not only able to show that witnesses might 0:13:33.720 --> 0:13:37.520 fabricate details of a memory that never existed, but they 0:13:37.520 --> 0:13:41.640 are also likely to not remember many details of events 0:13:41.640 --> 0:13:46.320 that happened right in front of their faces. These experiments 0:13:46.400 --> 0:13:50.439 also demonstrated that the memories of two different people observing 0:13:50.480 --> 0:13:54.920 the same event or photo could be wildly different, despite 0:13:54.920 --> 0:13:57.600 the fact that they had no stake in line or 0:13:57.640 --> 0:13:59.920 making the outcome of the events appear to have happened 0:14:00.040 --> 0:14:04.680 one way or another. Hugo also concluded that the witness's 0:14:04.760 --> 0:14:08.600 own claim of certainty didn't necessarily mean that their memories 0:14:08.600 --> 0:14:12.160 were more accurate. A witness might say, for example, that 0:14:12.240 --> 0:14:15.680 they were absolutely certain that there was a stove in 0:14:15.720 --> 0:14:18.760 the photo, or that he or she was certain that 0:14:18.840 --> 0:14:21.960 all Hugo did was spin a disk in his right hand, 0:14:22.720 --> 0:14:25.920 But even as they claimed certainty, there was proof that 0:14:25.960 --> 0:14:30.800 their memories were incorrect. When his book on these experiments 0:14:30.920 --> 0:14:33.800 was published in nineteen oh eight, The New York Times 0:14:33.800 --> 0:14:37.160 wrote that his studies had the potential to revolutionize courtroom 0:14:37.200 --> 0:14:41.280 procedure and to quote bring light and order in domains 0:14:41.320 --> 0:14:46.840 where all or almost all is darkness and confusion. But 0:14:46.880 --> 0:14:50.600 that's not what happened, because Hugo also had many critics 0:14:50.800 --> 0:14:54.320 who scoffed at his attempt to apply psychology to the courtroom, 0:14:55.400 --> 0:14:59.800 and so courtroom procedure around eyewitness testimony was not completely 0:14:59.800 --> 0:15:05.080 re revolutionized. To this day, countless innocent men and women 0:15:05.360 --> 0:15:10.680 are sent to prison based on faulty eyewitness testimony. Over 0:15:10.760 --> 0:15:15.120 a half a century after Hugo's research was mocked, psychologist 0:15:15.200 --> 0:15:19.640 Elizabeth Loftis took another look at eyewitness testimony with a 0:15:19.680 --> 0:15:23.440 more modern take on Hugo's experiments, she was able to 0:15:23.520 --> 0:15:28.080 prove just how unreliable eyewitness testimony is and why it 0:15:28.120 --> 0:15:31.400 shouldn't be trusted as the gold standard of evidence in 0:15:31.440 --> 0:15:34.080 a courtroom or in a police lineup. 0:15:37.560 --> 0:15:42.920 Many people, unfortunately believe that memory works like a recording device. 0:15:43.000 --> 0:15:46.240 You take in the information, you record it, you just 0:15:46.360 --> 0:15:49.320 play it back the way some kind of video recorder 0:15:49.360 --> 0:15:53.440 would work, And that is not really the way memory works. 0:15:53.760 --> 0:15:57.360 What happens when we're remembering something is we tend to 0:15:57.400 --> 0:16:01.000 take bits and pieces of experience, sometimes from different times 0:16:01.040 --> 0:16:05.960 of places. We bring it together and we construct a memory. 0:16:06.640 --> 0:16:09.200 So I like to think of memory a little bit more, 0:16:09.480 --> 0:16:13.640 not like a recording device, but more like a Wikipedia page. 0:16:14.200 --> 0:16:16.280 You can go in there and edit it, but so 0:16:16.440 --> 0:16:17.360 can other people. 0:16:18.520 --> 0:16:23.160 Today on our show, we're speaking with renowned psychologist Elizabeth Loftus. 0:16:24.200 --> 0:16:28.440 Elizabeth is currently a professor at the University of California, Irvine. 0:16:29.160 --> 0:16:34.400 She studies human memory, specifically the malleability of memory, which 0:16:34.400 --> 0:16:37.920 of course is a huge factor in cases where eyewitness 0:16:38.000 --> 0:16:43.200 testimony is used as evidence. So, Elizabeth, can you tell 0:16:43.280 --> 0:16:46.280 us about some of the experiments that you worked on 0:16:46.560 --> 0:16:48.640 to study memories of eyewitnesses. 0:16:49.920 --> 0:16:52.680 You know. One of the ways that I and my 0:16:53.200 --> 0:16:57.600 collaborators have studied memory and hundreds of studies you know, 0:16:57.680 --> 0:17:02.840 probably now forty fifty thousand participants over the course of 0:17:02.880 --> 0:17:06.280 my career. One of the ways that we study memory 0:17:06.960 --> 0:17:12.280 is we'll show people a simulated crime. For example, we 0:17:12.359 --> 0:17:17.920 will then expose people to some new information about that crime. 0:17:18.400 --> 0:17:21.679 So they might have seen a bad guy take a 0:17:21.720 --> 0:17:25.480 wallet out of somebody's purse and he's wearing a green jacket, 0:17:25.800 --> 0:17:30.560 but they then get misinformation from another witness or from 0:17:30.600 --> 0:17:35.360 a leading question that the jacket was brown. And finally, 0:17:35.400 --> 0:17:38.720 we will ask our witnesses, tell me exactly what you saw, 0:17:39.359 --> 0:17:42.320 give me as much detail as you can remember, and 0:17:42.480 --> 0:17:45.600 many of them will then remember that the jacket was 0:17:45.680 --> 0:17:49.520 brown and not green, or we can make them believe 0:17:49.600 --> 0:17:52.520 the bad guy had curly hair instead of straight hair. 0:17:53.160 --> 0:17:59.199 All by exposing people to new information, misleading information, it 0:17:59.280 --> 0:18:02.680 impairs our own memory, and this is now referred to 0:18:03.640 --> 0:18:07.240 in the psychological literature as the misinformation effect. 0:18:08.000 --> 0:18:11.920 So give me another example. What are some other experiments 0:18:12.000 --> 0:18:16.320 you did where misinformation just kind of gets slipped into 0:18:16.320 --> 0:18:18.920 the person's memory without them even knowing it. 0:18:19.880 --> 0:18:24.720 We've shown people a simulated accident. A car goes through 0:18:24.840 --> 0:18:27.720 an intersection with a yield sign and then ends up 0:18:27.760 --> 0:18:33.120 hitting a pedestrian and pedestrian falls over. A police officer 0:18:33.200 --> 0:18:36.520 comes to tend to the pedestrian who's lying down on 0:18:36.640 --> 0:18:43.440 the ground. Afterwards, our witnesses are asked a series of questions, 0:18:43.760 --> 0:18:48.040 and one of those questions might be did another car 0:18:48.480 --> 0:18:50.840 pass the red dots and when it was at the 0:18:50.880 --> 0:18:55.000 intersection with the stop sign. Now, that is a very 0:18:55.119 --> 0:18:59.439 clever question, just so you can appreciate the cleverness you 0:18:59.520 --> 0:19:02.119 as the wait think I'm asking you about whether another 0:19:02.160 --> 0:19:08.720 car passed while the Dobson was stopped. You revisualize the scene, 0:19:09.400 --> 0:19:12.600 and in your visualization you might put in a stop 0:19:12.600 --> 0:19:15.760 sign that I've mentioned as part of the question. You 0:19:15.880 --> 0:19:19.480 think you're answering about whether another car stop, but this 0:19:19.640 --> 0:19:23.639 stop sign kind of invades your consciousness, almost like a 0:19:23.680 --> 0:19:28.359 trojan horse. You don't even detect that it's coming. And 0:19:28.480 --> 0:19:33.080 after that, many people will then claim I saw a 0:19:33.080 --> 0:19:37.480 stop sign at that intersection. And you can show them 0:19:37.520 --> 0:19:39.959 two scenes, the scene with a stop sign or the 0:19:39.960 --> 0:19:42.639 scene with a yield sign. They'll pick the one with 0:19:42.720 --> 0:19:47.280 a stop sign. They have succumbed to the question and 0:19:47.920 --> 0:19:51.880 fallen sway to its suggestion, and now it appears as 0:19:51.880 --> 0:20:02.240 if this is their memory. 0:20:03.960 --> 0:20:06.320 Now, I want to get back to the way cops 0:20:06.400 --> 0:20:10.840 influence a witness. I've dealt with cases where the cops 0:20:11.320 --> 0:20:16.600 know who the suspect is and do things either consciously 0:20:16.920 --> 0:20:21.560 or even unconsciously, I guess, to encourage the witness to 0:20:21.760 --> 0:20:25.240 choose the person that they believe is their suspect. Have 0:20:25.359 --> 0:20:27.680 you dealt with anything like that in your research. 0:20:29.000 --> 0:20:33.159 One of my favorite examples a case I testified in 0:20:33.160 --> 0:20:37.600 in California. There's a crime. The eyewitness has shown a 0:20:37.680 --> 0:20:42.440 six pack six photographs. The eyewitness says, I really don't 0:20:43.160 --> 0:20:47.959 recognize anybody, and the officer says, wait a minute, I 0:20:48.040 --> 0:20:51.200 see your eyes drifting down to number six. What's going 0:20:51.240 --> 0:20:56.080 on there? Eventually number six gets seized upon identified, and 0:20:56.119 --> 0:21:00.520 that's the person who gets prosecuted. So there's a highly 0:21:01.000 --> 0:21:06.160 suggestive thing going on here. I'm willing to get, certainly 0:21:06.200 --> 0:21:09.359 to give these officers the benefit of the doubt and 0:21:09.440 --> 0:21:13.679 say they they're not even aware in a way of 0:21:13.720 --> 0:21:17.840 their own influence, and that a lot of what's happening 0:21:17.920 --> 0:21:19.359 is is kind of unwitting. 0:21:20.520 --> 0:21:24.479 So look, I'm an alleged expert in jury selection, and 0:21:24.520 --> 0:21:26.639 people are always saying to me, like, how does this 0:21:26.680 --> 0:21:30.400 affect you? Are you always trying to psychoanalyze me? So 0:21:30.800 --> 0:21:33.719 tell me a little bit about how this, you know, 0:21:34.560 --> 0:21:37.560 deep knowledge of memory impacts you. Do you find yourself 0:21:37.680 --> 0:21:39.959 like not trusting your own memory at times? 0:21:41.119 --> 0:21:43.640 Well, the one experience that I do have from all 0:21:43.680 --> 0:21:46.719 these decades of doing this kind of work is I 0:21:46.880 --> 0:21:52.000 understand that along with those like sort of bits of 0:21:52.119 --> 0:21:57.680 truth are bits of fiction intermingled in there. And I'm 0:21:57.720 --> 0:22:00.720 not bothered by that. I understand, and that's part of 0:22:01.400 --> 0:22:08.200 the malleable nature of memory. I think what this acceptance 0:22:08.240 --> 0:22:11.680 has done for me is it makes me a little 0:22:11.680 --> 0:22:16.840 bit more tolerant of the mistakes that friends make, or 0:22:16.880 --> 0:22:20.840 family members make, or even I myself might make. I 0:22:20.880 --> 0:22:24.480 don't immediately assume somebody is a big fat liar. They 0:22:24.480 --> 0:22:27.040 could honestly have a false memory. And I think it's 0:22:27.080 --> 0:22:30.240 a kind of kinder way to feel about people. 0:22:30.840 --> 0:22:34.120 Okay, so that's pretty interesting. Do you think this same 0:22:34.320 --> 0:22:37.520 kindness as you refer to it, that you offer let's say, 0:22:37.600 --> 0:22:40.840 your friends, your family, even yourself, do you think we 0:22:40.880 --> 0:22:45.160 should offer witnesses the same kind of kindness in court cases. 0:22:46.400 --> 0:22:49.320 Do you want to call these people a liar or 0:22:49.359 --> 0:22:51.439 do you want to accept the fact that maybe some 0:22:51.600 --> 0:22:56.520 kind of process has led them to develop a set 0:22:56.560 --> 0:23:00.080 of beliefs and things that feel to them like memory, 0:23:00.640 --> 0:23:03.719 And it is kinder even in a court case. I 0:23:03.720 --> 0:23:09.120 think sometimes for lawyers who are challenging these memories to 0:23:09.200 --> 0:23:12.720 talk about them as potentially false memories rather than talk 0:23:12.760 --> 0:23:16.520 about the accuser as being a big fat liar. 0:23:17.280 --> 0:23:19.680 So you're an expert witness in a lot of cases 0:23:19.720 --> 0:23:23.600 that depend on eyewitness testimony. You know, we've talked a 0:23:23.640 --> 0:23:28.920 lot throughout the course of this podcast about how some 0:23:29.040 --> 0:23:33.840 expert witnesses aren't basing their testimony on good science or facts. 0:23:34.440 --> 0:23:37.120 But you're not that kind of witness. I mean, you've 0:23:37.119 --> 0:23:40.160 been studying memory for years and years, and you've done 0:23:40.200 --> 0:23:45.280 experiments and you know, tested this with thousands of participants. 0:23:45.600 --> 0:23:47.560 You have a lot of data to back up what 0:23:47.600 --> 0:23:50.240 you're testifying to in court. But tell me, have you 0:23:50.280 --> 0:23:53.160 ever heard of witness testifying in court or read their 0:23:53.200 --> 0:23:56.920 testimony and it kind of made you think, well, this 0:23:56.960 --> 0:24:00.520 isn't science at all. They're actually twisting this so much 0:24:00.600 --> 0:24:02.520 that it's more like junk science. 0:24:03.800 --> 0:24:07.880 I guess what I've seen happen in some cases, and 0:24:07.920 --> 0:24:13.280 this bothers me where I think opposing experts are introducing 0:24:13.480 --> 0:24:19.320 junk science. It's about trauma. They want to introduce to 0:24:19.480 --> 0:24:27.280 science that basically says traumatic memories are completely different. Traumatic memories, 0:24:27.400 --> 0:24:30.920 you know, are stored in the body. Traumatic memories can 0:24:30.960 --> 0:24:34.600 be relied on traumatic memories that kind of don't have 0:24:34.680 --> 0:24:40.160 these same problems. In fact, traumatic memories operate under similar 0:24:40.240 --> 0:24:44.480 in similar ways. They fade over time, they can be 0:24:44.600 --> 0:24:50.240 influenced by post event information. They're just lots of features 0:24:50.920 --> 0:24:54.200 of memory that are true, whether you're trying to remember 0:24:54.240 --> 0:24:57.400 something that's upsetting or whether you're trying to remember something 0:24:57.760 --> 0:25:02.320 that is a little bit more new and less emotional. 0:25:03.040 --> 0:25:05.280 You see this in the movies all the time. They're 0:25:05.320 --> 0:25:08.760 saying something like, I was so frightened when this happened. 0:25:09.280 --> 0:25:11.960 I'll never forget that face as long as I live. 0:25:12.400 --> 0:25:17.199 That's an expression of the belief that this traumatic memory 0:25:17.240 --> 0:25:20.800 is sort of imprinted in the brain and is reliably 0:25:20.880 --> 0:25:23.879 and solidly there, and you just need to read it out. 0:25:24.400 --> 0:25:28.800 And that is not the way things work. With memory 0:25:28.800 --> 0:25:32.080 in general, or even traumatic memories. 0:25:32.800 --> 0:25:35.840 So tell us more about that, because I do think 0:25:35.920 --> 0:25:40.119 that when we hear about someone who has been raped 0:25:40.359 --> 0:25:44.960 or there's been a violent attack, our instinct is that 0:25:45.280 --> 0:25:48.200 we should believe them no matter what, right, like, why 0:25:48.200 --> 0:25:52.480 would somebody make this up? So how do we reconcile 0:25:53.160 --> 0:25:58.200 the desire to believe a victim, or the natural tendency 0:25:58.400 --> 0:26:02.439 to believe a victim, with the knowledge that memories just 0:26:02.600 --> 0:26:04.880 aren't the most reliable form of evidence. 0:26:06.080 --> 0:26:09.160 I think the way we reconcile all this is that 0:26:09.560 --> 0:26:14.359 when there is somebody with an accusation, we certainly listen 0:26:14.480 --> 0:26:18.639 to it and examine it. And we don't want to 0:26:18.760 --> 0:26:23.320 uncritically accept every accusation, no matter how dubious. And we 0:26:23.480 --> 0:26:29.040 don't want to routinely reject an accusation just because we 0:26:29.080 --> 0:26:32.040 don't like how it sounds. So I do think there 0:26:32.600 --> 0:26:38.959 is a way to reconcile these two seemingly conflictual driving forces. 0:26:39.480 --> 0:26:44.840 But I don't think we forego our democratic principles and 0:26:45.240 --> 0:26:49.680 and forget about the fact that we're proud to have 0:26:49.960 --> 0:26:55.719 a legal system that respects the rights of the accused 0:26:55.760 --> 0:26:57.440 to have a defense. 0:26:58.400 --> 0:27:01.200 Yeah, I mean, it's a tough to let right, because 0:27:01.560 --> 0:27:06.800 I've had that instance just last week where you know, 0:27:07.040 --> 0:27:09.840 I am defending someone who I believe to be innocent. 0:27:10.600 --> 0:27:14.000 And you know, when people hear about the case, or 0:27:14.080 --> 0:27:16.440 you tell them about the case, you know, at least 0:27:16.480 --> 0:27:19.640 what's public knowledge. You know, their reaction is, well, why 0:27:19.720 --> 0:27:25.400 would somebody make up, you know, a accusation of sexual 0:27:25.440 --> 0:27:28.080 assault for instance. But the reality is is that they 0:27:28.119 --> 0:27:31.000 may not be consciously making it up. It may not 0:27:31.040 --> 0:27:33.840 be a conscious lie. It may just be that their 0:27:34.000 --> 0:27:38.879 perception and what they think is their reliable memory is 0:27:39.040 --> 0:27:42.920 just not correct. Now, look, I have my own ideas, 0:27:43.000 --> 0:27:46.120 and you know, the Innocence Project, as you know, has 0:27:46.359 --> 0:27:49.200 done a ton of policy work around this and trying 0:27:49.240 --> 0:27:55.360