Should I ever be charged with a crime, I shall not be one of those people who say that they will be proven innocence because they have faith in the legal system. Rather I’ll be saying that although I am innocent, I have no faith that I shall be exonerated. In my view there is little in common between the concept of justice and the legal system. At least in the United States, each individual gets the amount of justice that individual can afford. Say I am charged with a crime, and I am innocent. Going with a public defender would most likely increase the probability of either a conviction or some plea bargain to a lesser sentence. If I want to reduce my chances of being wrongfully convicted, I will pay for the best judicial defense I can afford. If I am exonerated, there is a good chance that I have gone into bankruptcy. So, even in that case, can we say that justice has prevailed?
I am annoyed by the instructions the judge provides to the jurors in criminal cases. In a criminal case it is usually to be convinced beyond a reasonable doubt, or some variant thereof. Now what does that mean? There needs to be some trade-off here. How many innocent people would we be willing to convict to prevent a guilty person from going free? Is it one in one hundred? One in twenty? One in ten? One in five? The instructions need to be more specific.
Here are some statistics from an article in Scientific American Mind.1 412 is the number of people exonerated in the U.S. After being implicated by mistaken witness testimony as of September 2012. 137 is the number of people exonerated in the U.S. after being implicated by false confessions as of September 2012. All too frequently we read about prisoners being released from prison on the basis of DNA evidence. Often this occurs after they have spent many years in prison.
What is infuriating is that even when there is compelling evidence, such as DNA evidence, that someone has been wrongfully imprisoned, the so-called justice system is reluctant to release the individual. This supports the idea that lawyers, both defenders and prosecutors, are not interested in justice; they are interested winning.
So what does psychological science have to offer the legal system if it does want to pursue justice? Psychological science studies how we perceive, think, solve problems, make decisions, how we process information and how our memories work. I think the relevance should be obvious here. We know that we have two systems for processing information: System One which is fast and does the initial processing of information. System Two is slow and deliberative, and has the responsibility for checking the accuracy of System One output. Our default when we encounter new information, absent cues to the contrary is to believe it. If it is wrong, the hope is that it will eventually be corrected by System Two. So when judges inform jurors that they are to disregard something said or introduced in court, research has shown that it is unlikely to be disregarded just because the judge said so. Research has indicated that a short and to the point explanation as to why the information should be ignored is effective (See the healthymemory blog post, “Solutions and Good Practices for Misinformation”).
Extensive research has been done showing that eyewitness testimony is highly unreliable, yet courts and jurors have historically weighted it highly. Although it is true that recognition is worse for people of differing ethnic or racial groups, it remains unreliable even within the same group. The Innocence Project, a national organization focused on correcting wrongful convictions through DNA testing and judicial reform, has freed 301 individuals on the basis of DNA testing. In about 75% of these cases, a principal cause of the erroneous guilty verdict was faulty eyewitness testimony. In about 35% of these cases the testimony stemmed from two or more incorrect observers. This demonstrates that consistency should not be confused with correctness. That is, reliability is not necessarily validity. The method for doing facial recognition is extremely important. Rather than present pictures together in groups, they should be presented individually. Moreover, there should be no guarantee or suggestion that the guilty party is one of the photographs shown. And the officers, themselves, should be blind regarding the identity of the suspect. The same procedure applies to line-ups, that they should be done individually with no guarantee or suggestion that the suspect is there.
One study indicated that 63 percent of the respondents believe that “memory works like a video camera.” Research has shown that nothing could be further from the truth. Memory is fallible and is easily influenced by suggestions and contexts. Moreover, each time we recall information, there are changes. Questioning by investigators, even if not intended, can lead to faulty recall and erroneous convictions. The cognitive interview is a procedure that has been developed by psychologists that might lead to more accurate eyewitness testimony. It relies on techniques derived from scientifically supported principles of memory. It asks open-ended rather than suggestive question. It reminds witnesses of the context of the crime and offers them reminders of the crime, and discourages them from guessing.
Confessions should not be regarded as conclusive. There were 200 people who confessed to the kidnapping of Charles Lindbergh‘s baby. The Innocence Project found that up to 27% of individuals initially found guilty but later cleared by DNA evidence had confessed in spite of their clean hands.
This indicates that the videotaping of interrogations is essential. It is also important to videotape the interrogators as well as the suspect.
Psychologists are also skilled in designing experiments and research projects to minimize bias. Correct sampling procedures are essential. This is true for juries. It is not surprising that mixed -race juries are fairer to black defendants. It also appears that diversity improves the accuracy and critical thinking of jurors. Perhaps you do not need training in psychology to know realize this. It would appear to be a matter of common sense. The legal system has been slow to realize this.
In the United States, the Supreme Court sits atop the legal system. There are different approaches to interpreting the Constitution of the United States. There is a progressive view that the Constitution is to be viewed as a living document, and is to be interpreted in the view of new knowledge. The competing view is the Strict Constructionist view. According to this view the Constitution is to be viewed as the original writers intended. Remember that at the time the Constitution was written, slavery was legal and thrived in the southern states. Black people were regarded as being three-fifths of a human being. Women could not vote. At that time Benjamin Franklin was one of the most knowledgeable scientists in the world. Today a high school science student knows much more science than Benjamin Franklin ever did. Currently five of the nine justices on the Supreme Court are regarded as strict constructionists. This might account for some of their decisions and for some of the difficulties the United States currently finds itself.