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How biased judges and juries can make you a murderer
3.
cracking under interrogation
Alberto Giuliani/LUZphoto/eyevine
Sweat snakes down your face as you’re grilled by two detectives. No matter how intensive the interrogation gets, there’s one thing you know for certain – no way are you going to confess to a crime you didn’t commit. Yet false confessions happen more frequently than you might think. According to the US Innocence Project, more than a quarter of those exonerated by DNA evidence have made a false confession or incriminating statement at some point – even to such serious offences as rape or murder. Gisli Gudjonsson, an emeritus professor at King’s College London who has worked on UK cases involving false confessions, believes
38 | NewScientist | 18 June 2016
LEX VAN LIESHOUT/AFP/Getty
identified the person in it, we become committed to that identification.” Extreme stress can also blur people’s memory of an event, says Valentine, an effect compounded by “weapon focus”, in which the sight of a deadly weapon dominates our memory at the expense of the assailant’s identity. To reduce these risks, the Innocence Project has drawn up a series of policies that have so far been adopted by 14 US states. These include limiting exposure of the witness to a suspect before formal identification takes place; blinding the person administering the line-up to who the real suspect is; telling the witness that the perpetrator may or may not be in the line-up, so they don’t feel pressured to choose someone; and recording their confidence in the identification, should they make one. Identifications should also be videoed where possible, something that experts say is currently standard protocol in the UK alone.
in the 4. bias courtroom
A bad first impression can prejudice a courtroom and lead to an unjust conviction
many adults simply struggle to cope with the reality of a police interrogation or being locked up in a cell. “A common feature is that they believe that everything is going to be sorted out – that no one will believe their confession and the truth will somehow come out; unfortunately, in most cases it doesn’t.” There are also other reasons for confessing. Some people do it voluntarily, either to cover for someone else or because they crave attention. In other cases, people gradually
28% of Overturned convictions EXAMINED by the US innocence project involved the extraction of false confessions* Source: innocence project
Things aren’t looking good. Your case has gone all the way to trial, despite your innocence. As your long walk into the courtroom begins, you can only hope that your judge and jury are as fair-minded as you’ve been led to expect. But the chances are that many will have formed an opinion of your guilt or innocence before anyone even speaks. Biases for age, attractiveness, race and gender have all been identified among jurors as well as judges. “Factors which are not supposed to be determining outcomes in our courtrooms are in fact having an effect,” says Adam Benforado of Drexel University in Philadelphia, Pennsylvania, and author of Unfair: The new science of criminal injustice. “We are not the rational actors that we think we are.” US studies have shown that all-white juries
begin to believe – typically as the course of interrogation subtly alters their thinking – that they were involved in a crime and just can’t remember doing it. An extreme example of this was the Geirfinnur case, in which six innocent people were convicted of the murder of two men in Iceland in 1974. All were driven to confess following periods of solitary confinement, sleep deprivation and extensive questioning. Such aggressive techniques can be less than helpful. In the US, Canada and many Asian countries, the interview style is often accusatory, with suspects detained in a small room, confronted with incriminating evidence and offered face-saving excuses or justifications to encourage confession. In contrast, European countries, Australia and New Zealand tend to focus more on information-gathering methods: establishing a rapport and encouraging suspects to give their version of events. A recent study revealed that the European approach increased the chances of getting to the truth, and reduced the likelihood of false confessions. The main problem in all this is that humans aren’t very good at spotting when they are being lied to. Studies have revealed that even trained police interrogators only get it right just over half the time – about the same as inexperienced college students. In ensuring that police interviews are recorded in full and avoiding heavy-handed interrogation techniques, Gudjonsson believes the UK is leading the way. But there is room for improvement in the treatment of vulnerable suspects, he says, who should always be accompanied by an appropriate adult.
are more likely to convict black defendants for crimes perpetrated against white victims, for example, while a recent Canadian study found that male mock jurors were more convinced a defendant was guilty of rape if the victim’s photograph had been manipulated to make them look unattractive than when the victim was good-looking . This individual bias also seeps into the way jurors interpret evidence. Take the case of Victor Harris, a Georgia teenager who was paralysed following a 2007 chase in which a police car deliberately hit the back of his car to spin it to a stop. Convinced that no reasonable juror could conclude the policeman was at fault from footage of this chase, Supreme Court justices took the unusual step of posting the video online. Yet when a broad crosssection of Americans was shown the video, sharp divisions emerged in their conclusions, with 26 per cent stating the police response was disproportionate to the risk Harris posed.
tc ou ld be yo
“You often assume that there is one objective way to see the facts, but it turns out that jurors’ background experiences shape how they see the world,” says Benforado. Given that these distorting influences exist, Benforado and others believe measures should be taken to level the playing field. Simply making people aware that such implicit biases exist can help to mitigate the effects, so a handful of US judges have started issuing jurors with instructions to examine their own attitudes. Further down the line, another option would be to create virtual courtrooms, in which neutral avatars represent plaintiffs and defendants, and many of the potential variables can be more closely controlled. “It would allow people to focus on what is meant to make a difference: the law and the facts, not the defendant’s skin, the southern drawl of the attorney, or the colour of the courtroom walls,” Benforado says.
VINCE BUCCI/AFP/Getty
Expert testimony can be deeply convincing – and flawed
5.
expert opinion
A prison sentence is in the offing if you can’t show that what happened was an accident. An expert witness takes to the stand and announces that the chances of the event being accidental are 1 in 73 million. Your lawyer takes a sharp intake of breath, and then bumbles his cross-examination. Convinced by the statistic, the jury convicts you. Who can blame them? Challenging a statistic – particularly one delivered by an expert – can be intimidating. And many people have a pathological fear of numbers: lawyers, jurors and judges are no exception. Yet courtroom statistics are often misleading, as revealed in the case of Sally Clark – a British solicitor convicted, and eventually cleared, of murdering her eldest two children. In this case, paediatrician Roy Meadow claimed that the chances of two children in the same family
dying of sudden infant death syndrome was 1 in 73 million – a statistic that originally came from a UK government-funded inquiry into sudden death in infancy. Although the authors acknowledged neglecting genetic factors that might boost a family’s risk, Meadow didn’t spell this out in court, and no one thought to question him about it. “If the lawyers and the judges don’t really understand the basics of how to interpret a piece of evidence, jurors have got no hope,” says Norman Fenton, director of the risk information management research group
95% of reviewed trials involving microscopic hair analysis by fbi experts revealed they had overstated the strength of forensic evidence Source: National Association of Criminal Defense Lawyers
61% of overturned convictions Examined by the Us innocence project involved African American defendants* Source: innocence project *out of a total of 342 convictions overturned in the us since 1989, according to the us Innocence Project. multiple factors were involved in many of these cases.
at Queen Mary University of London. And as other forensic disciplines strive to become more quantitative in their analysis of crime scene evidence (see “At the scene of the crime”, page 36), the potential for misunderstanding can only grow. “The science is becoming more complex, so the interpretation has got to become more complex to keep up with it,” says Colin Aitken, chair of the UK Royal Statistical Society working group on statistics and the law. “The numbers that are being produced in court are not answering the questions the courts want.” So what to do? One approach is to throw out complex evidence altogether. Another is to educate. The Royal Statistical Society has published a series of guides aimed at teaching lawyers about statistics and probabilistic reasoning. “If the lawyers understood what was going on, they couldn’t misrepresent the numbers because the other side would pick them up on it,” says Aitken. “Many lawyers don’t know the right questions to ask.” Fenton agrees, which is why he teaches lawyers the basic principles of Bayesian probability – the odds of something happening given the odds of other related events. “Where errors have been made, it’s usually because there have been fairly complex and related bits of evidence,” he says. But are lawyers and jurors up to the job? Fenton argues that a degree in mathematics isn’t necessary: “We try to think about ways that you could capture the essence of these arguments without getting the lawyers or jurors to actually calculate probability.” n Linda Geddes is a New Scientist consultant based in Bristol, UK 18 June 2016 | NewScientist | 39
cracking under interrogation
Alberto Giuliani/LUZphoto/eyevine
Sweat snakes down your face as you’re grilled by two detectives. No matter how intensive the interrogation gets, there’s one thing you know for certain – no way are you going to confess to a crime you didn’t commit. Yet false confessions happen more frequently than you might think. According to the US Innocence Project, more than a quarter of those exonerated by DNA evidence have made a false confession or incriminating statement at some point – even to such serious offences as rape or murder. Gisli Gudjonsson, an emeritus professor at King’s College London who has worked on UK cases involving false confessions, believes
38 | NewScientist | 18 June 2016
LEX VAN LIESHOUT/AFP/Getty
identified the person in it, we become committed to that identification.” Extreme stress can also blur people’s memory of an event, says Valentine, an effect compounded by “weapon focus”, in which the sight of a deadly weapon dominates our memory at the expense of the assailant’s identity. To reduce these risks, the Innocence Project has drawn up a series of policies that have so far been adopted by 14 US states. These include limiting exposure of the witness to a suspect before formal identification takes place; blinding the person administering the line-up to who the real suspect is; telling the witness that the perpetrator may or may not be in the line-up, so they don’t feel pressured to choose someone; and recording their confidence in the identification, should they make one. Identifications should also be videoed where possible, something that experts say is currently standard protocol in the UK alone.
in the 4. bias courtroom
A bad first impression can prejudice a courtroom and lead to an unjust conviction
many adults simply struggle to cope with the reality of a police interrogation or being locked up in a cell. “A common feature is that they believe that everything is going to be sorted out – that no one will believe their confession and the truth will somehow come out; unfortunately, in most cases it doesn’t.” There are also other reasons for confessing. Some people do it voluntarily, either to cover for someone else or because they crave attention. In other cases, people gradually
28% of Overturned convictions EXAMINED by the US innocence project involved the extraction of false confessions* Source: innocence project
Things aren’t looking good. Your case has gone all the way to trial, despite your innocence. As your long walk into the courtroom begins, you can only hope that your judge and jury are as fair-minded as you’ve been led to expect. But the chances are that many will have formed an opinion of your guilt or innocence before anyone even speaks. Biases for age, attractiveness, race and gender have all been identified among jurors as well as judges. “Factors which are not supposed to be determining outcomes in our courtrooms are in fact having an effect,” says Adam Benforado of Drexel University in Philadelphia, Pennsylvania, and author of Unfair: The new science of criminal injustice. “We are not the rational actors that we think we are.” US studies have shown that all-white juries
begin to believe – typically as the course of interrogation subtly alters their thinking – that they were involved in a crime and just can’t remember doing it. An extreme example of this was the Geirfinnur case, in which six innocent people were convicted of the murder of two men in Iceland in 1974. All were driven to confess following periods of solitary confinement, sleep deprivation and extensive questioning. Such aggressive techniques can be less than helpful. In the US, Canada and many Asian countries, the interview style is often accusatory, with suspects detained in a small room, confronted with incriminating evidence and offered face-saving excuses or justifications to encourage confession. In contrast, European countries, Australia and New Zealand tend to focus more on information-gathering methods: establishing a rapport and encouraging suspects to give their version of events. A recent study revealed that the European approach increased the chances of getting to the truth, and reduced the likelihood of false confessions. The main problem in all this is that humans aren’t very good at spotting when they are being lied to. Studies have revealed that even trained police interrogators only get it right just over half the time – about the same as inexperienced college students. In ensuring that police interviews are recorded in full and avoiding heavy-handed interrogation techniques, Gudjonsson believes the UK is leading the way. But there is room for improvement in the treatment of vulnerable suspects, he says, who should always be accompanied by an appropriate adult.
are more likely to convict black defendants for crimes perpetrated against white victims, for example, while a recent Canadian study found that male mock jurors were more convinced a defendant was guilty of rape if the victim’s photograph had been manipulated to make them look unattractive than when the victim was good-looking . This individual bias also seeps into the way jurors interpret evidence. Take the case of Victor Harris, a Georgia teenager who was paralysed following a 2007 chase in which a police car deliberately hit the back of his car to spin it to a stop. Convinced that no reasonable juror could conclude the policeman was at fault from footage of this chase, Supreme Court justices took the unusual step of posting the video online. Yet when a broad crosssection of Americans was shown the video, sharp divisions emerged in their conclusions, with 26 per cent stating the police response was disproportionate to the risk Harris posed.
tc ou ld be yo
“You often assume that there is one objective way to see the facts, but it turns out that jurors’ background experiences shape how they see the world,” says Benforado. Given that these distorting influences exist, Benforado and others believe measures should be taken to level the playing field. Simply making people aware that such implicit biases exist can help to mitigate the effects, so a handful of US judges have started issuing jurors with instructions to examine their own attitudes. Further down the line, another option would be to create virtual courtrooms, in which neutral avatars represent plaintiffs and defendants, and many of the potential variables can be more closely controlled. “It would allow people to focus on what is meant to make a difference: the law and the facts, not the defendant’s skin, the southern drawl of the attorney, or the colour of the courtroom walls,” Benforado says.
VINCE BUCCI/AFP/Getty
Expert testimony can be deeply convincing – and flawed
5.
expert opinion
A prison sentence is in the offing if you can’t show that what happened was an accident. An expert witness takes to the stand and announces that the chances of the event being accidental are 1 in 73 million. Your lawyer takes a sharp intake of breath, and then bumbles his cross-examination. Convinced by the statistic, the jury convicts you. Who can blame them? Challenging a statistic – particularly one delivered by an expert – can be intimidating. And many people have a pathological fear of numbers: lawyers, jurors and judges are no exception. Yet courtroom statistics are often misleading, as revealed in the case of Sally Clark – a British solicitor convicted, and eventually cleared, of murdering her eldest two children. In this case, paediatrician Roy Meadow claimed that the chances of two children in the same family
dying of sudden infant death syndrome was 1 in 73 million – a statistic that originally came from a UK government-funded inquiry into sudden death in infancy. Although the authors acknowledged neglecting genetic factors that might boost a family’s risk, Meadow didn’t spell this out in court, and no one thought to question him about it. “If the lawyers and the judges don’t really understand the basics of how to interpret a piece of evidence, jurors have got no hope,” says Norman Fenton, director of the risk information management research group
95% of reviewed trials involving microscopic hair analysis by fbi experts revealed they had overstated the strength of forensic evidence Source: National Association of Criminal Defense Lawyers
61% of overturned convictions Examined by the Us innocence project involved African American defendants* Source: innocence project *out of a total of 342 convictions overturned in the us since 1989, according to the us Innocence Project. multiple factors were involved in many of these cases.
at Queen Mary University of London. And as other forensic disciplines strive to become more quantitative in their analysis of crime scene evidence (see “At the scene of the crime”, page 36), the potential for misunderstanding can only grow. “The science is becoming more complex, so the interpretation has got to become more complex to keep up with it,” says Colin Aitken, chair of the UK Royal Statistical Society working group on statistics and the law. “The numbers that are being produced in court are not answering the questions the courts want.” So what to do? One approach is to throw out complex evidence altogether. Another is to educate. The Royal Statistical Society has published a series of guides aimed at teaching lawyers about statistics and probabilistic reasoning. “If the lawyers understood what was going on, they couldn’t misrepresent the numbers because the other side would pick them up on it,” says Aitken. “Many lawyers don’t know the right questions to ask.” Fenton agrees, which is why he teaches lawyers the basic principles of Bayesian probability – the odds of something happening given the odds of other related events. “Where errors have been made, it’s usually because there have been fairly complex and related bits of evidence,” he says. But are lawyers and jurors up to the job? Fenton argues that a degree in mathematics isn’t necessary: “We try to think about ways that you could capture the essence of these arguments without getting the lawyers or jurors to actually calculate probability.” n Linda Geddes is a New Scientist consultant based in Bristol, UK 18 June 2016 | NewScientist | 39