2 should link to the second comment on that page, and quotes part of it.
Last night I wrote the first on my blog since 4/28 of this year (read on, this is not a plea for readers). In it, I said that a Jo/hn Fu/nd op-ed was misleading, laid out some background about what was being discussed, and then said that I'd happily take the time to explain why I'd asserted the op-ed was misleading, if anyone was interested. It seemed entirely likely to me that after having not written for a long time on a blog that never had much of a readership, no one would notice the post, in which case I didn't want to do the work of explaining my reasoning. Lo and behold, when I checked this morning, someone purporting to be (and who I must assume to be) Jo/hn Fu/nd asked me to explain.
And I'm planning to answer him on my blog. Why would I want it to be possible for him to google his name and find out that commenting on my blog had enough of an impact that I'm telling others about it?
No worries about googleproofing my site, the only reason I didn't include the URL above was to make it clear that I wasn't asking for readers, but rather telling of an oddity I had just experienced.
LB (and others who are legal and criminal justice experts), a couple of questions from a total ignoramus: how often are these things studied? It would be nice to think that these sorts of common procedures are studied and refined pretty rigorously, but I'm sure reality does not reflect that desire. I mean, is it studied enough that this study is recognized by most professionals as invalid? Or is it sufficiently unexamined that there's a danger people will adopt a less reliable method on the grounds of a faulty study? You mentioned in your initial post that there was "a lot of interest" in coming up with better ways of producing accurate identifications that will hold up in court, but I'm not clear on how much interest = "a lot." That's not meant to be snarky in case it comes out sounding that way; I'm genuinely curious.
A related question: in a day and age when it's easy to get the impression, from entirely outside the legal system, that cases increasingly hinge on technical analyses of physical evidence, it's also easy to believe that something as analog as a witness ID is unimportant to the successful prosecution of a case. How often are lineups and witness IDs integral? (Again, that's not rhetorical. Remember, this is being asked by a guy whose entire legal history consists of traffic court, and not even for a moving violation.)
A recent article that I'm not going to track down right now discuss the following problem. Jurors, based on CSI, similar shows, and news accounts of high-profile cases, believe that there will be good forensic evidence in most cases. In cases where there is no forensic evidence brought in by either side the chances of them aquitting is higher than it was historically in cases with similar non-forensic evidence. Long and the short: forensics is expensive; eye-witnesses and lineups are cheap; they're therefore very prevalent (says the law student with no real experience).
But isn't it a good thing that jurors are more likely to aquit in cases based solely on eyewitness testimony, given how unreliable that testimony has been shown to be?
It's good if jurors base their decisions on facts. It's bad if they base them on falsehoods. I don't see an inference from "There is no forensic evidence here" to "It is somewhat more likely the defendant is innocent" as being of the sort that will reliably not generate falsehoods.
it's better if the error is in the direction of aquitting rather than convicting people.
Of course I agree with that, I'm just taking the controversial position that minimizing the number of likely errors is good. If they can't be gotten rid of, then let's talk about how to makle them point in the right direction.
Can they be gotten rid of, though? (This is where my extremely limited knowledge of the criminal justice system runs dry. Over to you, lawyers and lawyers-to-be.)
I think (or maybe I just wanna show off some of my fancy epistemological larnin') teofilo might be making the following point: In real life people think eyewitnesses are more reliable than they are. Now people also think, falsely, "A really good case will have forensic evidence as well." So they discount eyewitness evidence in the absence of forensic evidence, which means that they trust eyewitnesses about as much as they should (maybe).
Now, they definitely don't know how reliable eyewitnesses are, because their estimate of their reliability is based on a false belief. It's a Gettier case with a false lemma. Still, what's important is that they give the correct credence to eyewitness testimony, not their reasons for doing so.
There are definitely some problems here -- if jurors had fewer false beliefs they might be more likely to trust eyewitness testimony that was actually reliable and discount the stuff that wasn't, without the red herring of forensic evidence. OTOH, it really seems to me that eliminating errors that cause acquittals while retaining errors that cause convictions would be a very bad thing.
I'm not sure I see why that would be a bad thing. Currently X innocent people are in jail while Y criminals walk free. (Not considering those criminals who are never arrested or tried, just the ones that were falsely acquitted.) If you reduce the frequency of errors which lead to conviction, then X will decrease (all other things being equal); if you reduce the frequency of errors which lead to acquittal, then Y will decrease. Both of these are good things (and arguably decreasing X is better and more important), but I don't know that failing to do one of them affects the goodness of doing the other one.
Reducing the number of first-order errors is always good. But what we're talking about here is second-order errors: errors about "Eyewitness testimony is reliable" rather than "Joe Bloggs is guilty." Because jurors erroneously believe that eyewitness testimony is reliable, innocent people are convicted; if their erroneous belief that good cases have forensic evidence cancels it out, maybe some of those innocent people will be acquitted after all. In that case I'd be against correcting the second error but not the first (pending analysis of what the actual impacts are).
LB (and others who are legal and criminal justice experts)
Sadly, I really don't qualify. I'm a commercial litigator -- professionally, I've been involved in criminal matters a very, very few times, and nothing that would lead me to have personal knowledge of this stuff. I'm writing about this as an interested layperson, whose general legal background may give me a slightly easier time following what's going on. But not much.
how often are these things studied? It would be nice to think that these sorts of common procedures are studied and refined pretty rigorously, but I'm sure reality does not reflect that desire.
It's my understanding that problems with eyewitness identification are a fairly serious object of study in the academic criminal justice world -- translating the academic thinking into actual practice is slow, given the wildly decentralized nature of law-enforcement in this country (the studies have to filter down to, and convince, authorities in every little county). I also have the uneducated impression that there is some resistance among the law enforcement community to adopting the academic view of the unreliability of eyewitness testimony, because it is so useful for getting convictions. One of the features of the bad study I commented on is that it appears to adopt this attitude -- calling simultaneous lineups 'more accurate' because they had a higher rate of identification of the guy who the police suspected, not of a person who was known to be guilty by some more objective standard (such as, maybe, limiting the study to cases where there was also confirmatory forensic evidence.)
A related question: in a day and age when it's easy to get the impression, from entirely outside the legal system, that cases increasingly hinge on technical analyses of physical evidence, it's also easy to believe that something as analog as a witness ID is unimportant to the successful prosecution of a case. How often are lineups and witness IDs integral?
Absolutely all the time. Lots of crimes are innately not going to produce CSI type evidence -- say, a drug sale. In other cases the CSI type evidence may be lost or unavailable -- a rape where the victim showered, etc., before reporting it, an assault or a mugging where the criminal wasn't injured and didn't leave traces... a more realistic view of how reliable eyewitness identification of strangers was would make convictions in a lot of cases much, much harder to get.
(And I totally endorse 18. I think our criminal justice system is screwed up in a way that makes 'innocent till proven guilty' a bit of a farce; but I emphatically don't think that additional false beliefs, even if they have a corrective effect in practice, are in any way a good thing.)
I emphatically don't think that additional false beliefs, even if they have a corrective effect in practice, are in any way a good thing.
To be serious, you can't mean both bolded phrases. I think 18 is probably right in so far as that false belief is likely to produce more errors than reversing them. But most of the people who post on this board are probably at very little risk of being arrested or having their loved ones for a crime they didn't commit; I doubt that the police are showing anyone our pictures when they're looking for suspects. Anyone who was fingered by an erroneous eyewitness and was (correctly) acquitted because the jury (mistakenly) wanted forensic evidence would (correctly) see that as in some way a good thing.
This talk about errors, in my estimation, basically boils down to a balancing test. We're trying to balance a) accuracy with b) a goal of system legitimacy. Accuracy dictates that pieces of evidence which tend to produce more errors (eyewitness testimony) should be given reduced weight, right? So, under an accuracy view, we should advise jurors that they have a tendency to overweigh eyewitness testimony (which they do) (and which lawyers have tried to do, especially in cases of cross-racial identification, which is notoriously erroneous), and send them on their way.
However, doing this compromises our aspirations of system legitimacy. The 'system' here is that of a lay jury that does most of the factfinding. To tell the jury that they can't trust their own instincts about whether to believe a witness, well, that's just usurping the role of the jury. Accordingly, most interpretations of the federal rules of evidence provide that this kind of evidence (that is, that juries overweigh the credibility of eyewitnesses) should not be allowed.
Of course, my conspiracy theorist side of the brain says that courts don't want this evidence in because it might make it harder for prosecutors to win convictions, and no one wants that.
29: You're right. 'In any way' should be 'net out to be'. Anything that makes an innocent defendant walk out of the courtroom free is good in that regard, however insane or stupid it may be. I'm just afraid of erecting a structure of one illusion compensating for another, making it more and more difficult to ever get anything straight.
Comity! (Incidentally "to be serious" in 29 meant "in contrast with my previous facetious comment.") That seems right about netting out.
I'm pretty much with the conspiracy theorists here. The risks of wrongful conviction are going to be almost exclusively borne by people of very different class backgrounds from most judges, legislators, journalists, and campaign donors. So there's a lot of pressure to get convictions, and not that much to reduce wrongful ones.
And the idea that this evidence should be excluded I find utterly appalling; shouldn't the defense be allowed to say, "You know, you can't always trust witnesses, especially when they've been influenced this way or the other?" In the end the jury would be weighing that evidence (and my guess is they'd mostly ignore it).
Well, I mean it depends. The defense can say that "you can't always trust witnesses," if there's been some particular evidence to show that the witness in question is biased.
I don't even think we're talking about just bias here. Even when witnesses don't have a particular reason to be biased, they still get it wrong. So it's a problem of accuracy in general. Now, what people have tried to do is bring in experts to testify about lack of eyewitness accuracy generally. Attempts to admit such experts have, as far as I know, failed. Part of the test as to whether an expert can be permitted to testify is whether their testimony will be "helpful" to the jury, and it is argued that that kind of testimony will just confuse them.
Even when witnesses don't have a particular reason to be biased, they still get it wrong.
There was a truly horrifying Op-Ed in the NYTimes some years back, I didn't save it and now I can't find it. A rape victim writing about how, when she was raped twenty years before, she had stared at her assailant, memorizing his face, so that she would be able to testify against him. And at trial she had unhesitiatingly identified the defendant, and knew it was the guy who raped her. And now, twenty years later, they did DNA testing, and the defendant didn't match. (As I remember the Op-Ed, the DNA matched another convicted rapist with a strong resemblance to the guy who was convicted of assaulting her. But that may be my memory dressing up the facts. In any case, she was now certain that the guy she had identified was innocent.)
What a horrifying thing to happen. First, of course, spending your life in jail for something you didn't do. And then the idea that you had, with the best of intentions and feeling entirely justified, done that to someone else. What a complete nightmare.
Jurors, based on CSI, similar shows, and news accounts of high-profile cases, believe that there will be good forensic evidence in most cases.
When I was summoned for jury service in a criminal court recently, the judge took special care to explain that CSI and L&O aren't how crime and courtrooms really work, and that the jury should listen to the directions of the judge.
And I do think that's probably a good thing, because the worry isn't wrongful conviction, but impossibility of conviction of someone because the jury is wondering why the prosecution didn't order a laser-beam analysis of the soil composition on the second cousin's high heels like CSI did last Thursday. ("The dancer at Duke must be lying because the prosecution didn't test the ground for seismic tremors that could have caused her injuries.')
If the jury's intuitions about what's a law and what's a crime are messed up because they're watching too much fantasy television, shouldn't they be told to ignore it? (Forget fantasy crime analysis. Wouldn't you like the jury not to think that the Arresting Officer Is Always a Rugged Hero Who Gets His Man With Unorthodox Methods?)
If the jury's intuitions about what's a law and what's a crime are messed up because they're watching too much fantasy television, shouldn't they be told to ignore it?
They should be, and as your experience shows, they often are. What the courts will usually not allow them to be shown is expert evidence that their judgment of how reliable eyewitness identifications are is likely to be systematically wrong.
Well, that seems retarded, unless there's something I don't understand. But the fix can't get be to hope they are waiting for laser-beam analyses and that will take care of the eyewitness problems. Rather like fixing the health insurance problem by waiting for the Sardonic Rulebreaking Diagnostician Who Will Get That New Procedure Approved Dammit.
Well, that seems retarded, unless there's something I don't understand.
It's, in this context, kinda dumb, but it is the essential principle of the jury system -- that 12 ordinary citizens get to decide who to believe, without anyone else's judgment being substituted for theirs.
The business of jurors expectations being formed by entertainment dramas has been around for awhile. And you do feel kind of helpless against the persuasive power of make-believe. Those shows exist, I've always thought, because of a near-universal desire for certainty and order. What lawyers and courts offer is process, which doesn't mean anything if the results are known in advance. Against the expectation of many dramas where you are shown the criminal committing the crime a system where the answer might be that no one will ever know, and beyond trying the defendant isn't interested in finding out, must be frustrating. "Procedurals" where some clever forensic device reveals "the truth" pretend to be about process but deliver just as much certainty, that's what they're in the business of providing. We live in a world, maybe we always have, where cynicism is the result less of the discovery of reality than the kind of illusions that we bring and that are exposed as such. What the judge is asking people to do is hard for anyone, good students of philosophy and literature as most of us know, let alone randomly selected citizens.
Matt's speculations about useful illusions illuminates the average lawyer's problem: given the atmosphere we all have to contend with, how do you make this stuff work for you?
OK, I just do not understand this idea of other people's judgment getting substituted for the jury's. Don't we want the jury's informed judgment? Shouldn't that informed judgment include information about how reliable witnesses are? If not, why don't we admit polygraphs blah blah blah and forbid evidence that your judgment of polygraphs is likely to be inaccurate?
Maybe it's dumb on the allowing the ordinary citizen's judgment part. I'm being facetious, but the ordinary citizen ain't that bright. I mean, half of the people in the jury pool pretty much were trying so hard to get out of jury service that they told the defense counsel and assistant D.A. that they were definitely racist, always believed that cops were right, that they had family members harmed by drugs, that there was no way they could be fair, or in the smug words of one guy 'well, you wouldn't run from a cop unless you'd done something wrong, so I guess the fact that he's charged with running means he had the drugs' (I was a little too close to the interview table.) Mostly I was thinking 'This? This is how justice works?'
One of my friends just had a horrible experience on jury duty that left her not-leaving-the-apartment depressed for weeks. The guy on trial was a teenager who shot and killed the wrong guy as a retaliation for some gang-related beef. They didn't have any real evidence that the defendant was the person who did it but all of the jurors left feeling that he probably that he did. The jury was split - half wanting to convict because they "felt in their hearts" that he did it or just wanted to throw him in jail "in case" he did it (basically, wanting to get another young black kid off the streets) and the other half were reluctantly voting to acquit because of lack of evidence, even though they felt like they were turning a killer back into society. It finally came down to the people voting for guilty caving to the not-guiltys, not because they were persuaded, but because they were tired of jury duty. Even though she had been on the "not-guilty/we can't send this guy to jail if there's no evidence even though he probably did it" side, she was disgusted that people cared more about getting out of jury deliberations as quickly as possible than making sure justice was really served.
Becks -- I had a similar experience to that last year (but without the not-leaving-the-apartment depression -- I felt not exhilarated but relieved when the verdict was delivered) last year and I gotta say, there's something to be said for the time pressure on jurors who want to get done with the trial and back to life. That pressure really was an incentive for (I almost said "incentivized"-- yikes!) us to argue with some direction toward resolving our differences.
OK, I just do not understand this idea of other people's judgment getting substituted for the jury's. Don't we want the jury's informed judgment
The distinction is supposed to be between the jury's judgment on ordinary, everyday matters -- how much you should believe a story someone tells you about what they saw -- and stuff that requires particular learning and expertise. The unreliability of eyewitness IDs is really counterintuitive, and surprisingly so -- people 'ID' each other in daily life all the time, and it's genuinely odd that they are consistently wrong about what their odds of correctly IDing a stranger are.
The unreliability of eyewitness IDs is really counterintuitive
means that ordinary people are in need of expert testimony about the reliability of eyewitness IDs. Is the standard supposed to be what people think they know? Why bother having testimony at all then? Certainly the jury instructions mentioned in 36 should be ruled out, too; the jurors were just using their common sense about how courtrooms work, until the judge substituted his/her judgment for theirs.
If the rules of evidence really are keeping information about eyewitness ID out of the courtroom, then that is a hideous miscarriage of justice. It wouldn't last for half a second if judge's kids were getting arrested this way.
I realize that my quarrel is not with any of you posted, but I think it's ridiculous to say that giving people accurate information is subverting their judgment in any way. This is not fundamental to any system of justice.
I can't disagree with you on the 'boy this is dumb' front. I am not the legal scholar necessary to defend the distinction between where expert opinion is admissible and where it isn't on this issue, and I think that someone either needs to come up with an argument why expert opinion on the reliablity of eyewitness testimony should be admissible under the current rules, or the current rules should change.
You know, it really does seem like juries should all be prepped on systematic human cognitive biases, including things like eyewitness identification, but also a bunch of others. Sadly, simply being aware of these biases doesn't allow one to correct for them.
Yeah, that's part of the reason I'm getting a little het up; though I deal with things at an abstract enough level that these issues don't usually arise as such, I've done a little reading around on these issues. Particularly striking and worth knowing by juries is the stuff about how your memories get changed forever when you use them -- by which I mean, once the victim in 35 wrongfully identified the guy, I'm pretty sure his face overwrote the face of the original assailant in her memory.
Ironically, I defend common sense and other things being equal believing what people tell you. But always tempered by testimony! Especially expert testimony.
Could you direct the philosophically ignorant, i.e., me, to a good Encyclopedia entry so that I can know what this means.
2.) A friend of my parents was mugged sometime in the 80's. He thought that he recognized the guy in the line-up, but he wasn't completely sure. And since he knew that juries value (and pre-CSI they probably valued it more) eyewitness testimony a lot, he refused to identify anyone. He just didn't want to be responsible for sending some poor, young black kid to prison, if it turned out that he was the wrong guy. This did not endear him to the police.
3.) Slightly OT. A friend of mine got stuck with grand jury duty. That's 4 days/ week for three months. Nobody's pushing to finish fast, since you're still stuck there, and it just means that you have to move on to the next case. There are occasionally people who volunteer. It worked out okay for him--although he did not volunteer. He's a lawyer who's passed the bar in two states but hasn't practiced, because he's been following his wife around as she completes various residencies and medical fellowships. She's wavering on what specialty she should go into etc. He's actually learning a lot about criminal law. That's a very different experience for a few reasons. The first I mentioned above, namely the fact that he's there for three months no matter what. The second is that the standard is a lot lower. Is there sufficient evidence to indict? Third, there are twenty five people in the room rather than twelve. Wait, there's a fourth. The composition of the jury tends to change a bit over time. Sometimes people get excused because of some mitigating life event, and they drop out in the same way that that works in a petit jury. Often times, though, jurors from Dorchester will know one of the accused and will have to recuse themselves. They step aside from a particular case, but they don't have to (or get to, depending on your perspective) abandon the grand jury duty entirely.
(1) Sorry -- this sort of explains it. A Gettier case is where you have a justified true belief that doesn't count as knowledge; one of the ways this happens is because your reasoning to the true conclusion uses a false intermediate step, which is the false lemma. (Here actually the beliefs arguably aren't justified.)
(2) I don't know if I told this story before, but I witnessed a robbery by a gang of teenagers when I was 18; a bunch were in a car and one pushed a kid off his bike. Later on I was called to testify at a hearing for a juvenile who had been arrested for this and similar crimes. I felt like I was under a lot of pressure, from the cop and the other witness, to ID the juvenile, even though he looked absolutely like the one who'd stolen the bike, who was the only one I'd got a decent look at. It made me appreciate how unreliable eyewitnesses can be; if he had looked plausibly like the one I saw I might have IDed him.
even though he looked absolutely like the one who'd stolen the bike,
-and-
if he had looked plausibly like the one I saw
-- am I missing something? In the first case it sounds like you are saying he did look like your memory and in the second case it sounds like you are saying he did not.
The op-ed doesn't really add much to my old post -- this post was more for the LGM audience who probably didn't read what I wrote about it before.
Posted by LizardBreath | Link to this comment | 06- 6-06 8:09 AM
Why don't you publish an op-ed in the New York Times?
Posted by washerdreyer | Link to this comment | 06- 6-06 8:44 AM
Huh?
Posted by The Modesto Kid | Link to this comment | 06- 6-06 8:47 AM
Hmmm, this is too long for my LiveJournal. I think I'll let the Times have it.
Posted by mcmc | Link to this comment | 06- 6-06 8:51 AM
2 should link to the second comment on that page, and quotes part of it.
Last night I wrote the first on my blog since 4/28 of this year (read on, this is not a plea for readers). In it, I said that a Jo/hn Fu/nd op-ed was misleading, laid out some background about what was being discussed, and then said that I'd happily take the time to explain why I'd asserted the op-ed was misleading, if anyone was interested. It seemed entirely likely to me that after having not written for a long time on a blog that never had much of a readership, no one would notice the post, in which case I didn't want to do the work of explaining my reasoning. Lo and behold, when I checked this morning, someone purporting to be (and who I must assume to be) Jo/hn Fu/nd asked me to explain.
Posted by washerdreyer | Link to this comment | 06- 6-06 8:59 AM
Why the googleproofing? He saw your blog, why not this comment?
Posted by LizardBreath | Link to this comment | 06- 6-06 9:05 AM
And I'm planning to answer him on my blog. Why would I want it to be possible for him to google his name and find out that commenting on my blog had enough of an impact that I'm telling others about it?
Posted by washerdreyer | Link to this comment | 06- 6-06 9:09 AM
w/d, could you remind me what the title of your blog is, Googleproofing as necessary or as you see fit? It has slipped my mind.
Posted by The Modesto Kid | Link to this comment | 06- 6-06 9:12 AM
I dunno -- it just seemed like an odd thing to guard against.
(Oh, all right -- I just want all commenting that happens anywhere online to happen here. The Unfogged comments section must retain hegemony!)
Posted by LizardBreath | Link to this comment | 06- 6-06 9:12 AM
On the other hand, if I were a fan of the new Dr. Who, I'd want the lead actor to show up.
Posted by washerdreyer | Link to this comment | 06- 6-06 9:12 AM
Aha! I know why I forgot the name! You only have a provisional title, right?
Posted by The Modesto Kid | Link to this comment | 06- 6-06 9:15 AM
No worries about googleproofing my site, the only reason I didn't include the URL above was to make it clear that I wasn't asking for readers, but rather telling of an oddity I had just experienced.
On preview: that's correct.
Posted by washerdreyer | Link to this comment | 06- 6-06 9:17 AM
if I were a fan of the new Dr. Who, I'd want the lead actor to show up.
. . . but you're not, so you don't?
Posted by My Alter Ego | Link to this comment | 06- 6-06 9:38 AM
13: does not follow. I'm just comparing something that I thought it was strange for others to enslashinate to something that I thought should be.
Posted by washerdreyer | Link to this comment | 06- 6-06 9:53 AM
LB (and others who are legal and criminal justice experts), a couple of questions from a total ignoramus: how often are these things studied? It would be nice to think that these sorts of common procedures are studied and refined pretty rigorously, but I'm sure reality does not reflect that desire. I mean, is it studied enough that this study is recognized by most professionals as invalid? Or is it sufficiently unexamined that there's a danger people will adopt a less reliable method on the grounds of a faulty study? You mentioned in your initial post that there was "a lot of interest" in coming up with better ways of producing accurate identifications that will hold up in court, but I'm not clear on how much interest = "a lot." That's not meant to be snarky in case it comes out sounding that way; I'm genuinely curious.
A related question: in a day and age when it's easy to get the impression, from entirely outside the legal system, that cases increasingly hinge on technical analyses of physical evidence, it's also easy to believe that something as analog as a witness ID is unimportant to the successful prosecution of a case. How often are lineups and witness IDs integral? (Again, that's not rhetorical. Remember, this is being asked by a guy whose entire legal history consists of traffic court, and not even for a moving violation.)
Posted by Robust McManlyPants | Link to this comment | 06- 6-06 10:44 PM
A recent article that I'm not going to track down right now discuss the following problem. Jurors, based on CSI, similar shows, and news accounts of high-profile cases, believe that there will be good forensic evidence in most cases. In cases where there is no forensic evidence brought in by either side the chances of them aquitting is higher than it was historically in cases with similar non-forensic evidence. Long and the short: forensics is expensive; eye-witnesses and lineups are cheap; they're therefore very prevalent (says the law student with no real experience).
Posted by washerdreyer | Link to this comment | 06- 6-06 10:58 PM
But isn't it a good thing that jurors are more likely to aquit in cases based solely on eyewitness testimony, given how unreliable that testimony has been shown to be?
Posted by teofilo | Link to this comment | 06- 6-06 11:13 PM
It's good if jurors base their decisions on facts. It's bad if they base them on falsehoods. I don't see an inference from "There is no forensic evidence here" to "It is somewhat more likely the defendant is innocent" as being of the sort that will reliably not generate falsehoods.
Posted by washerdreyer | Link to this comment | 06- 6-06 11:17 PM
Sure, but I mean it's better if the error is in the direction of aquitting rather than convicting people.
Posted by teofilo | Link to this comment | 06- 6-06 11:21 PM
it's better if the error is in the direction of aquitting rather than convicting people.
Of course I agree with that, I'm just taking the controversial position that minimizing the number of likely errors is good. If they can't be gotten rid of, then let's talk about how to makle them point in the right direction.
Posted by washerdreyer | Link to this comment | 06- 6-06 11:26 PM
Can they be gotten rid of, though? (This is where my extremely limited knowledge of the criminal justice system runs dry. Over to you, lawyers and lawyers-to-be.)
Posted by teofilo | Link to this comment | 06- 6-06 11:29 PM
I think (or maybe I just wanna show off some of my fancy epistemological larnin') teofilo might be making the following point: In real life people think eyewitnesses are more reliable than they are. Now people also think, falsely, "A really good case will have forensic evidence as well." So they discount eyewitness evidence in the absence of forensic evidence, which means that they trust eyewitnesses about as much as they should (maybe).
Now, they definitely don't know how reliable eyewitnesses are, because their estimate of their reliability is based on a false belief. It's a Gettier case with a false lemma. Still, what's important is that they give the correct credence to eyewitness testimony, not their reasons for doing so.
There are definitely some problems here -- if jurors had fewer false beliefs they might be more likely to trust eyewitness testimony that was actually reliable and discount the stuff that wasn't, without the red herring of forensic evidence. OTOH, it really seems to me that eliminating errors that cause acquittals while retaining errors that cause convictions would be a very bad thing.
Posted by Matt Weiner | Link to this comment | 06- 7-06 6:20 AM
I'm not sure I see why that would be a bad thing. Currently X innocent people are in jail while Y criminals walk free. (Not considering those criminals who are never arrested or tried, just the ones that were falsely acquitted.) If you reduce the frequency of errors which lead to conviction, then X will decrease (all other things being equal); if you reduce the frequency of errors which lead to acquittal, then Y will decrease. Both of these are good things (and arguably decreasing X is better and more important), but I don't know that failing to do one of them affects the goodness of doing the other one.
Posted by The Modesto Kid | Link to this comment | 06- 7-06 6:28 AM
Reducing the number of first-order errors is always good. But what we're talking about here is second-order errors: errors about "Eyewitness testimony is reliable" rather than "Joe Bloggs is guilty." Because jurors erroneously believe that eyewitness testimony is reliable, innocent people are convicted; if their erroneous belief that good cases have forensic evidence cancels it out, maybe some of those innocent people will be acquitted after all. In that case I'd be against correcting the second error but not the first (pending analysis of what the actual impacts are).
Posted by Matt Weiner | Link to this comment | 06- 7-06 6:42 AM
It's a Gettier case with a false lemma.
I would love to see a production of Twelve Angry Men that involved Weiner shouting that while pounding his fist on the table.
Posted by Becks | Link to this comment | 06- 7-06 6:47 AM
LB (and others who are legal and criminal justice experts)
Sadly, I really don't qualify. I'm a commercial litigator -- professionally, I've been involved in criminal matters a very, very few times, and nothing that would lead me to have personal knowledge of this stuff. I'm writing about this as an interested layperson, whose general legal background may give me a slightly easier time following what's going on. But not much.
how often are these things studied? It would be nice to think that these sorts of common procedures are studied and refined pretty rigorously, but I'm sure reality does not reflect that desire.
It's my understanding that problems with eyewitness identification are a fairly serious object of study in the academic criminal justice world -- translating the academic thinking into actual practice is slow, given the wildly decentralized nature of law-enforcement in this country (the studies have to filter down to, and convince, authorities in every little county). I also have the uneducated impression that there is some resistance among the law enforcement community to adopting the academic view of the unreliability of eyewitness testimony, because it is so useful for getting convictions. One of the features of the bad study I commented on is that it appears to adopt this attitude -- calling simultaneous lineups 'more accurate' because they had a higher rate of identification of the guy who the police suspected, not of a person who was known to be guilty by some more objective standard (such as, maybe, limiting the study to cases where there was also confirmatory forensic evidence.)
A related question: in a day and age when it's easy to get the impression, from entirely outside the legal system, that cases increasingly hinge on technical analyses of physical evidence, it's also easy to believe that something as analog as a witness ID is unimportant to the successful prosecution of a case. How often are lineups and witness IDs integral?
Absolutely all the time. Lots of crimes are innately not going to produce CSI type evidence -- say, a drug sale. In other cases the CSI type evidence may be lost or unavailable -- a rape where the victim showered, etc., before reporting it, an assault or a mugging where the criminal wasn't injured and didn't leave traces... a more realistic view of how reliable eyewitness identification of strangers was would make convictions in a lot of cases much, much harder to get.
(And I totally endorse 18. I think our criminal justice system is screwed up in a way that makes 'innocent till proven guilty' a bit of a farce; but I emphatically don't think that additional false beliefs, even if they have a corrective effect in practice, are in any way a good thing.)
Posted by LizardBreath | Link to this comment | 06- 7-06 7:38 AM
professionally, I've been involved in criminal matters a very, very few times
Dude! Don't tell us!
Posted by Matt Weiner | Link to this comment | 06- 7-06 7:50 AM
It's my impression that eyewitness identification is also an object of serious study in the cog. psych world.
Posted by Tia | Link to this comment | 06- 7-06 7:55 AM
I emphatically don't think that additional false beliefs, even if they have a corrective effect in practice, are in any way a good thing.
To be serious, you can't mean both bolded phrases. I think 18 is probably right in so far as that false belief is likely to produce more errors than reversing them. But most of the people who post on this board are probably at very little risk of being arrested or having their loved ones for a crime they didn't commit; I doubt that the police are showing anyone our pictures when they're looking for suspects. Anyone who was fingered by an erroneous eyewitness and was (correctly) acquitted because the jury (mistakenly) wanted forensic evidence would (correctly) see that as in some way a good thing.
Posted by Matt Weiner | Link to this comment | 06- 7-06 7:57 AM
27: Edited out of that comment was the clause "my clients, on the other hand..."
But it isn't true, and if it were I certainly wouldn't say any such thing.
Posted by LizardBreath | Link to this comment | 06- 7-06 7:57 AM
This talk about errors, in my estimation, basically boils down to a balancing test. We're trying to balance a) accuracy with b) a goal of system legitimacy. Accuracy dictates that pieces of evidence which tend to produce more errors (eyewitness testimony) should be given reduced weight, right? So, under an accuracy view, we should advise jurors that they have a tendency to overweigh eyewitness testimony (which they do) (and which lawyers have tried to do, especially in cases of cross-racial identification, which is notoriously erroneous), and send them on their way.
However, doing this compromises our aspirations of system legitimacy. The 'system' here is that of a lay jury that does most of the factfinding. To tell the jury that they can't trust their own instincts about whether to believe a witness, well, that's just usurping the role of the jury. Accordingly, most interpretations of the federal rules of evidence provide that this kind of evidence (that is, that juries overweigh the credibility of eyewitnesses) should not be allowed.
Of course, my conspiracy theorist side of the brain says that courts don't want this evidence in because it might make it harder for prosecutors to win convictions, and no one wants that.
Posted by silvana | Link to this comment | 06- 7-06 7:58 AM
29: You're right. 'In any way' should be 'net out to be'. Anything that makes an innocent defendant walk out of the courtroom free is good in that regard, however insane or stupid it may be. I'm just afraid of erecting a structure of one illusion compensating for another, making it more and more difficult to ever get anything straight.
Posted by LizardBreath | Link to this comment | 06- 7-06 8:00 AM
Comity! (Incidentally "to be serious" in 29 meant "in contrast with my previous facetious comment.") That seems right about netting out.
I'm pretty much with the conspiracy theorists here. The risks of wrongful conviction are going to be almost exclusively borne by people of very different class backgrounds from most judges, legislators, journalists, and campaign donors. So there's a lot of pressure to get convictions, and not that much to reduce wrongful ones.
And the idea that this evidence should be excluded I find utterly appalling; shouldn't the defense be allowed to say, "You know, you can't always trust witnesses, especially when they've been influenced this way or the other?" In the end the jury would be weighing that evidence (and my guess is they'd mostly ignore it).
Posted by Matt Weiner | Link to this comment | 06- 7-06 8:10 AM
Well, I mean it depends. The defense can say that "you can't always trust witnesses," if there's been some particular evidence to show that the witness in question is biased.
I don't even think we're talking about just bias here. Even when witnesses don't have a particular reason to be biased, they still get it wrong. So it's a problem of accuracy in general. Now, what people have tried to do is bring in experts to testify about lack of eyewitness accuracy generally. Attempts to admit such experts have, as far as I know, failed. Part of the test as to whether an expert can be permitted to testify is whether their testimony will be "helpful" to the jury, and it is argued that that kind of testimony will just confuse them.
Not sure whether I agree with that.
Posted by silvana | Link to this comment | 06- 7-06 8:16 AM
Even when witnesses don't have a particular reason to be biased, they still get it wrong.
There was a truly horrifying Op-Ed in the NYTimes some years back, I didn't save it and now I can't find it. A rape victim writing about how, when she was raped twenty years before, she had stared at her assailant, memorizing his face, so that she would be able to testify against him. And at trial she had unhesitiatingly identified the defendant, and knew it was the guy who raped her. And now, twenty years later, they did DNA testing, and the defendant didn't match. (As I remember the Op-Ed, the DNA matched another convicted rapist with a strong resemblance to the guy who was convicted of assaulting her. But that may be my memory dressing up the facts. In any case, she was now certain that the guy she had identified was innocent.)
What a horrifying thing to happen. First, of course, spending your life in jail for something you didn't do. And then the idea that you had, with the best of intentions and feeling entirely justified, done that to someone else. What a complete nightmare.
Posted by LizardBreath | Link to this comment | 06- 7-06 8:24 AM
Jurors, based on CSI, similar shows, and news accounts of high-profile cases, believe that there will be good forensic evidence in most cases.
When I was summoned for jury service in a criminal court recently, the judge took special care to explain that CSI and L&O aren't how crime and courtrooms really work, and that the jury should listen to the directions of the judge.
And I do think that's probably a good thing, because the worry isn't wrongful conviction, but impossibility of conviction of someone because the jury is wondering why the prosecution didn't order a laser-beam analysis of the soil composition on the second cousin's high heels like CSI did last Thursday. ("The dancer at Duke must be lying because the prosecution didn't test the ground for seismic tremors that could have caused her injuries.')
If the jury's intuitions about what's a law and what's a crime are messed up because they're watching too much fantasy television, shouldn't they be told to ignore it? (Forget fantasy crime analysis. Wouldn't you like the jury not to think that the Arresting Officer Is Always a Rugged Hero Who Gets His Man With Unorthodox Methods?)
Posted by Cala | Link to this comment | 06- 7-06 8:28 AM
If the jury's intuitions about what's a law and what's a crime are messed up because they're watching too much fantasy television, shouldn't they be told to ignore it?
They should be, and as your experience shows, they often are. What the courts will usually not allow them to be shown is expert evidence that their judgment of how reliable eyewitness identifications are is likely to be systematically wrong.
Posted by LizardBreath | Link to this comment | 06- 7-06 8:36 AM
Well, that seems retarded, unless there's something I don't understand. But the fix can't get be to hope they are waiting for laser-beam analyses and that will take care of the eyewitness problems. Rather like fixing the health insurance problem by waiting for the Sardonic Rulebreaking Diagnostician Who Will Get That New Procedure Approved Dammit.
Posted by Anonymous | Link to this comment | 06- 7-06 8:49 AM
Well, that seems retarded, unless there's something I don't understand.
It's, in this context, kinda dumb, but it is the essential principle of the jury system -- that 12 ordinary citizens get to decide who to believe, without anyone else's judgment being substituted for theirs.
Posted by LizardBreath | Link to this comment | 06- 7-06 8:54 AM
The business of jurors expectations being formed by entertainment dramas has been around for awhile. And you do feel kind of helpless against the persuasive power of make-believe. Those shows exist, I've always thought, because of a near-universal desire for certainty and order. What lawyers and courts offer is process, which doesn't mean anything if the results are known in advance. Against the expectation of many dramas where you are shown the criminal committing the crime a system where the answer might be that no one will ever know, and beyond trying the defendant isn't interested in finding out, must be frustrating. "Procedurals" where some clever forensic device reveals "the truth" pretend to be about process but deliver just as much certainty, that's what they're in the business of providing. We live in a world, maybe we always have, where cynicism is the result less of the discovery of reality than the kind of illusions that we bring and that are exposed as such. What the judge is asking people to do is hard for anyone, good students of philosophy and literature as most of us know, let alone randomly selected citizens.
Matt's speculations about useful illusions illuminates the average lawyer's problem: given the atmosphere we all have to contend with, how do you make this stuff work for you?
Posted by I don't pay | Link to this comment | 06- 7-06 8:55 AM
It has a name and a Wikipedia entry: CSI effect, with links to articles.
I'm commenting way too early in the morning (pacific time). This must be like getting drunk before lunch. I think I'm going to have to walk away.
Posted by eb | Link to this comment | 06- 7-06 9:02 AM
OK, I just do not understand this idea of other people's judgment getting substituted for the jury's. Don't we want the jury's informed judgment? Shouldn't that informed judgment include information about how reliable witnesses are? If not, why don't we admit polygraphs blah blah blah and forbid evidence that your judgment of polygraphs is likely to be inaccurate?
Posted by Matt Weiner | Link to this comment | 06- 7-06 9:13 AM
Maybe it's dumb on the allowing the ordinary citizen's judgment part. I'm being facetious, but the ordinary citizen ain't that bright. I mean, half of the people in the jury pool pretty much were trying so hard to get out of jury service that they told the defense counsel and assistant D.A. that they were definitely racist, always believed that cops were right, that they had family members harmed by drugs, that there was no way they could be fair, or in the smug words of one guy 'well, you wouldn't run from a cop unless you'd done something wrong, so I guess the fact that he's charged with running means he had the drugs' (I was a little too close to the interview table.) Mostly I was thinking 'This? This is how justice works?'
Posted by Cala | Link to this comment | 06- 7-06 9:17 AM
One of my friends just had a horrible experience on jury duty that left her not-leaving-the-apartment depressed for weeks. The guy on trial was a teenager who shot and killed the wrong guy as a retaliation for some gang-related beef. They didn't have any real evidence that the defendant was the person who did it but all of the jurors left feeling that he probably that he did. The jury was split - half wanting to convict because they "felt in their hearts" that he did it or just wanted to throw him in jail "in case" he did it (basically, wanting to get another young black kid off the streets) and the other half were reluctantly voting to acquit because of lack of evidence, even though they felt like they were turning a killer back into society. It finally came down to the people voting for guilty caving to the not-guiltys, not because they were persuaded, but because they were tired of jury duty. Even though she had been on the "not-guilty/we can't send this guy to jail if there's no evidence even though he probably did it" side, she was disgusted that people cared more about getting out of jury deliberations as quickly as possible than making sure justice was really served.
Posted by Becks | Link to this comment | 06- 7-06 10:14 AM
Becks -- I had a similar experience to that last year (but without the not-leaving-the-apartment depression -- I felt not exhilarated but relieved when the verdict was delivered) last year and I gotta say, there's something to be said for the time pressure on jurors who want to get done with the trial and back to life. That pressure really was an incentive for (I almost said "incentivized"-- yikes!) us to argue with some direction toward resolving our differences.
Posted by The Modesto Kid | Link to this comment | 06- 7-06 10:48 AM
Both incentivized and disincentivized are perfectly cromulent words.
Posted by washerdreyer | Link to this comment | 06- 7-06 10:58 AM
OK, I just do not understand this idea of other people's judgment getting substituted for the jury's. Don't we want the jury's informed judgment
The distinction is supposed to be between the jury's judgment on ordinary, everyday matters -- how much you should believe a story someone tells you about what they saw -- and stuff that requires particular learning and expertise. The unreliability of eyewitness IDs is really counterintuitive, and surprisingly so -- people 'ID' each other in daily life all the time, and it's genuinely odd that they are consistently wrong about what their odds of correctly IDing a stranger are.
Posted by LizardBreath | Link to this comment | 06- 7-06 11:02 AM
AAAAARRRRGGGGGGGGHHHHH
The unreliability of eyewitness IDs is really counterintuitive
means that ordinary people are in need of expert testimony about the reliability of eyewitness IDs. Is the standard supposed to be what people think they know? Why bother having testimony at all then? Certainly the jury instructions mentioned in 36 should be ruled out, too; the jurors were just using their common sense about how courtrooms work, until the judge substituted his/her judgment for theirs.
If the rules of evidence really are keeping information about eyewitness ID out of the courtroom, then that is a hideous miscarriage of justice. It wouldn't last for half a second if judge's kids were getting arrested this way.
I realize that my quarrel is not with any of you posted, but I think it's ridiculous to say that giving people accurate information is subverting their judgment in any way. This is not fundamental to any system of justice.
Posted by Matt Weiner | Link to this comment | 06- 7-06 11:14 AM
I can't disagree with you on the 'boy this is dumb' front. I am not the legal scholar necessary to defend the distinction between where expert opinion is admissible and where it isn't on this issue, and I think that someone either needs to come up with an argument why expert opinion on the reliablity of eyewitness testimony should be admissible under the current rules, or the current rules should change.
This is kind of your area, isn't it?
Posted by LizardBreath | Link to this comment | 06- 7-06 11:18 AM
You know, it really does seem like juries should all be prepped on systematic human cognitive biases, including things like eyewitness identification, but also a bunch of others. Sadly, simply being aware of these biases doesn't allow one to correct for them.
Posted by pdf23ds | Link to this comment | 06- 7-06 11:26 AM
This is kind of your area, isn't it?
Yeah, that's part of the reason I'm getting a little het up; though I deal with things at an abstract enough level that these issues don't usually arise as such, I've done a little reading around on these issues. Particularly striking and worth knowing by juries is the stuff about how your memories get changed forever when you use them -- by which I mean, once the victim in 35 wrongfully identified the guy, I'm pretty sure his face overwrote the face of the original assailant in her memory.
Ironically, I defend common sense and other things being equal believing what people tell you. But always tempered by testimony! Especially expert testimony.
Posted by Matt Weiner | Link to this comment | 06- 7-06 11:37 AM
1.) It's a Gettier case with a false lemma.
Could you direct the philosophically ignorant, i.e., me, to a good Encyclopedia entry so that I can know what this means.
2.) A friend of my parents was mugged sometime in the 80's. He thought that he recognized the guy in the line-up, but he wasn't completely sure. And since he knew that juries value (and pre-CSI they probably valued it more) eyewitness testimony a lot, he refused to identify anyone. He just didn't want to be responsible for sending some poor, young black kid to prison, if it turned out that he was the wrong guy. This did not endear him to the police.
3.) Slightly OT. A friend of mine got stuck with grand jury duty. That's 4 days/ week for three months. Nobody's pushing to finish fast, since you're still stuck there, and it just means that you have to move on to the next case. There are occasionally people who volunteer. It worked out okay for him--although he did not volunteer. He's a lawyer who's passed the bar in two states but hasn't practiced, because he's been following his wife around as she completes various residencies and medical fellowships. She's wavering on what specialty she should go into etc. He's actually learning a lot about criminal law. That's a very different experience for a few reasons. The first I mentioned above, namely the fact that he's there for three months no matter what. The second is that the standard is a lot lower. Is there sufficient evidence to indict? Third, there are twenty five people in the room rather than twelve. Wait, there's a fourth. The composition of the jury tends to change a bit over time. Sometimes people get excused because of some mitigating life event, and they drop out in the same way that that works in a petit jury. Often times, though, jurors from Dorchester will know one of the accused and will have to recuse themselves. They step aside from a particular case, but they don't have to (or get to, depending on your perspective) abandon the grand jury duty entirely.
Posted by Bostoniangirl | Link to this comment | 06- 7-06 11:58 AM
(1) Sorry -- this sort of explains it. A Gettier case is where you have a justified true belief that doesn't count as knowledge; one of the ways this happens is because your reasoning to the true conclusion uses a false intermediate step, which is the false lemma. (Here actually the beliefs arguably aren't justified.)
(2) I don't know if I told this story before, but I witnessed a robbery by a gang of teenagers when I was 18; a bunch were in a car and one pushed a kid off his bike. Later on I was called to testify at a hearing for a juvenile who had been arrested for this and similar crimes. I felt like I was under a lot of pressure, from the cop and the other witness, to ID the juvenile, even though he looked absolutely like the one who'd stolen the bike, who was the only one I'd got a decent look at. It made me appreciate how unreliable eyewitnesses can be; if he had looked plausibly like the one I saw I might have IDed him.
Posted by Matt Weiner | Link to this comment | 06- 7-06 12:11 PM
The first three sections of the Wikipedia article on the Gettier problem AOTW will give you a good idea of the problem and the false-premise issue.
Posted by Matt Weiner | Link to this comment | 06- 7-06 12:14 PM
even though he looked absolutely like the one who'd stolen the bike,
-and-
if he had looked plausibly like the one I saw
-- am I missing something? In the first case it sounds like you are saying he did look like your memory and in the second case it sounds like you are saying he did not.
Posted by The Modesto Kid | Link to this comment | 06- 7-06 12:16 PM
Oops, sense-reversing typo. He looked absolutely nothing like the one I got a good look at. (But could well have been one of the ones in the car.)
Posted by Matt Weiner | Link to this comment | 06- 7-06 12:21 PM
The problem, it seems to me, is trial by jury.
Posted by David Weman | Link to this comment | 06- 7-06 1:00 PM