Perception, Memory, and Justice

24 November 2015

In the criminal justice system, eyewitness testimony can make or break a case. Yet our eyes can deceive us and memory can be a fickle friend. So how much can we really trust eyewitness testimony?

Psychological research reveals a lot of deeply troubling facts about human perception and memory that should make us very skeptical of eyewitness testimony. Of course, we don’t need science to tell us that if we witness something from too far away, or if it’s too dark, or if we’re intoxicated, then our testimony is not going to be very reliable. That just seems like common sense. But common sense may also lead us astray when it comes to the reliability of eyewitness testimony, and that is what a lot of the research on this topic is telling us.

想象一下下面的场景。当你在银行排队时,持械劫匪闯进来,让所有人躺在地板上,让出纳员清空他们的现金抽屉。像这样紧张、戏剧性的事件一定会留在你的记忆中,对吧?毕竟,你并不是每天都能目睹银行抢劫案。也许当它发生的时候,你会特别努力地记住细节,因为如果你被叫去作证,这可能会被证明是重要的。如果这件事让你特别有压力,之后它甚至会在你的脑海中一遍又一遍地重演,而你却拼命地不去想它。

你懂的。所以,我要问你的问题是:你认为你有多擅长在一群罪犯中找出其中一个?为了便于论证,我们假设他们在抢劫时都没戴面具。事件发生在一个光线充足的银行中午,让我们假设你没有喝醉或嗑药,如果你视力不好,你当时戴着你的眼镜或隐形眼镜。

我猜你们中的很多人都认为自己能做得很好并且对之后指认嫌疑人很有信心。但还有一些其他的因素你可能没有考虑到。比如,你离其中一个行凶者有多近才能在之后确认他的身份?你观察凶手的角度对这种能力有什么影响?记得吗,抢劫的大部分时间你都躺在地板上。所以,如果你只是从地板上一个奇怪的角度看到他,那么你在指认嫌疑人(即直视他)方面会有多好呢?你需要多长时间观察他的脸才能在以后再次认出他?即使你知道一般人需要多长时间(不太可能,除非你研究过这些东西),你对时间的评估能力有多好,尤其是在高压力事件中,比如银行抢劫,当(你的)时间体验可能会显著放缓时?压力是如何影响你记住重要细节的能力的?最后,如果抢劫是用枪或其他武器进行的,这将如何影响你以后识别嫌疑人的能力?

Can common sense provide answers to these questions? Sure, we might all makeguesses, but we might also get the answers wrong. Luckily, the scientists who research the psychology of perception and memory are providing answers and many of them are quite surprising.

最后一个问题是我问的关于你识别嫌疑犯的能力的问题——在抢劫中使用的武器会对你的能力产生什么影响?这并不明显会产生什么影响,对吧?事实证明,当使用武器时,目击者有一种无意识的倾向,他们的注意力集中在武器上,而不是那些持有武器的人的脸上。所以,如果你盯着枪而不是那个人,你以后怎么能指认嫌疑人呢?

This list of questions I asked focused on some different factors that could affect your ability to perceive or pay attention to details, such that they could be recalled later. But the psychological research also shows how easily your memory can be pulled off track. The way witnesses are questioned by law enforcement can influence and change memories. For example, if you’re asked, “Did you see the gun?” rather than “Did you see a gun?” that can affect what you think you did or did not see. In the first case, which uses a definite article—“the”—that there was a gun is already suggested in the question, whereas in the second case, which uses an indefinite article—“a”—there is no such suggestion. As far as the police know, there may or may not have been a gun. And this can actually make a difference to a witnesses memory.

That’s because memory is something that isconstructedfrom little bits and pieces. It’s not, as we might imagine, simply a replaying of events, like watching a movie. How we put together these bits and pieces can be manipulated by external forces, whether intentionally or not. But if law enforcement don’t know about the various ways memories can be influenced, they may ask the wrong questions and end up with witnesses whose memories are not a reliable indicator of what actually happened.

这事不能在法庭上解决吗?这不就是为什么我们有对抗性制度吗?如果控方的证人不可靠,辩方可以诘问并对证词提出怀疑。

In an ideal world, that would be the case. But lawyers are not scientists or psychologists and they might be just as ignorant of the research on perception and memory as the next guy. And besides, jurors have all sorts of unconscious cognitive biases that can be hard to overcome. Take, for example, how confident a witness is in identifying a suspect. We’ve already mentioned some of the ways in which we may not be in a position to get a good enough look to form the right kind of memories to begin with, even if we're convinced we are. And then those memories can be manipulated. You could tell jurors about all this research, but the fact is that if a witness takes the stand and is very confident about what and who they saw and what they remembered, jurors tend to believe them. Yet the research shows that there is no positive correlation between confidence and accuracy. The confidence of a witness does not indicate that they are reliable or that we should believe their testimony.

This is why we now hear so many stories about convictions based on eyewitness testimony eventually being overturned because of new DNA evidence, sometimes years or even decades after the original conviction. Did you know that about 73% of all convictions overturned through DNA evidence were originally based on eyewitness testimony? It’s quite shocking and it’s definitely not justice. Innocent people’s lives get destroyed because other people think they see something, think they remember something, but they can be very, very wrong.

So what changes do we need to make to the criminal justice system in the light of this new research on memory and perception? When fingerprint and DNA evidence were introduced, it revolutionized the justice system. Maybe it’s time for another revolution, this time based on the latest psychological research. The question is: how do we go about integrating the findings of this research, especially when it does not give us black and white answers, the way that fingerprint or DNA evidence might.

To learn more about this fascinating research, tune into this week’s show with our guest Daniel Reisberg, psychologist and author ofThe Science of Perception and Memory: A Pragmatic Guide for the Justice System.

Comments(19)


DavidPerry's picture

DavidPerry

Wednesday, November 25, 2015 -- 4:00 PM

Before I was in confuse state

Before I was in confuse state whether criminals also have the rights to do but after having study and talks on it I realize that yes they do have some rights, some human rights and social rights.
我研究的网站提供了这些信息。刑事司法和权利、法律等一切。现在是每个人进行新革命的时候了。我喜欢这个帖子。

Gary M Washburn's picture

Gary M Washburn

Wednesday, November 25, 2015 -- 4:00 PM

Dawn French tells a cute joke

Dawn French tells a cute joke:
A snail is mugged by a turtle. The police ask it to describe the assailant. The snail says: "I don't remember, it all happened so fast!"

MJA's picture

MJA

Wednesday, November 25, 2015 -- 4:00 PM

The only person that can

The only person that can truly tell the future is the same person that can truly tell the past, and that is no One! =

Gary M Washburn's picture

Gary M Washburn

Wednesday, November 25, 2015 -- 4:00 PM

There is a scene in the

在吉卜林的故事《金》中有一个场景,其中有一个记忆练习来证明这个困难。内存服务吗?它不是法医设备。陪审团制度最初是一个从村庄长老和利益相关方中选出的团体,代表受害者和被告,不是为了确定罪行,而是决定罪行的程度,并以一种旨在恢复和平的付款形式设立补救办法。大多数证人的证词并不像他们愿意说出他们非常熟悉的“肇事者”那样不可靠。但是,试图将记忆作为一种鉴定工具是徒劳的,也不是一个恰当的哲学问题。如果你曾在多年后参加过一次聚会,很容易就会发现,感官并不是认知的基础。什么是亲密关系。令人惊讶的是,我们如何分享彼此的性格,以及如何在几十年的隔阂之后,以一种新的熟人无法理解的方式认识彼此。通过我们在生活中认识的所有人,我们通过对方的性格认识了自己,这种清晰的意识令人震惊,我们可以记住我们与他们分享的惊人细节,甚至可以不重复同一个笑话。 This is an amazing achievement, but it is the case because memory does not serve as a forensic tool. But, nevertheless, it is that intimacy we can achieve in recognizing ourselves in each other that is the basis of the reputation of the eye witness in a court setting, going back to Anglo-Saxon law. On the other hand, the tradition of the detached observer of the modernist era is a farcical perversion of the facility we have to know and identify each other, and it combines perniciously with a tradition in which crime is the act of the stranger, the lower class or racial or colonial other, never to be recognized as 'one of us' in any case, and so never the certitude of intimate recognition and therefore relegated to 'objective' or forensic 'observation'. It is as legally unsound a judgment as it is a vapid philosophical issue.

Harold G. Neuman's picture

Harold G. Neuman

Friday, November 27, 2015 -- 4:00 PM

As you have aptly

As you have aptly demonstrated in your post, eyewitnesses are notoriously unreliable for all the aforestated reasons. Additionally, people are as they are. They are notoriously biased, whether those biases are motivated by racial animosities, cultural disparities, language differences and/or other sociological characteristics that cause one group to dislike, disdain or distrust another. The record of our criminal justice system is checkered, at best, as an examination of convictions will readily reveal. Yet another damning factor is the difficulty encountered when facing a jury "of one's peers". This tried and true tool of jurisprudence is becoming more and more problematic. How, then, do we assemble such an impartial panel when facing the same sorts of discrepancies mentioned in the third sentence of this commentary? Moreover, perhaps, how do we fairly justify a jury of peers, if they truly are such and might therefore wish to set free a guilty member of their elite? I fondly recall a quotation from Karl Jaspers: Reality is an endless fabric of meaningful and meaningless factors. Oh the web we weave when first we practice to deceive!
Warmest,
Neuman.

Gary M Washburn's picture

Gary M Washburn

Sunday, November 29, 2015 -- 4:00 PM

The obsession with

The obsession with distinctions will be the undoing of philosophy if we suppose them the avenue to the holy grail of induction. The reason distinctions are of value is because, being reductive, they help us grasp the inductive sense of the end of that reduction in bringing us to recognize that the most encompassing term of reason is the lost antecedent, not its confirmation. That is, the law of the excluded middle is not validly axiomatic. If it were, we would not be able to reason at all. If A is B and B is C, the middle term, B, can hardly be excluded from our finding A is C! And yet, in the sense of that finding, B is neither! And Wen diagrams are no help. Even a strict Sorites always leaves something out. And so, the faculty of distinguishing one thing from another can never establish the meaning of our terms, and it is the loss of that faculty, as the most rigorous term of its reductive force, that is the engine and in a real sense the originary term of that meaning. And that is the holy grail so elusive to a mind insensible to the loss of its antecedent in the very act of reasoning from it and from what is taken as axiomatic in it. This is the Modernist enigma, and the clue to the dilemma of the eyewitness.
正义是社会的和平,而不是抓坏人。执着于找出有罪的一方,是一种分离制度的一部分,是对犯罪行为宣战的一部分。也就是说,我们没有给予罪犯回归社会的手段,而是加以区分和污名化。这是国内殖民体系的一部分。盎格鲁-撒克逊英格兰的诺曼统治者试图强制推行拉丁法典和法国风格的法律程序,这并非偶然,尽管他们这样制定的法律本质上是本土的。这是为了权力,不是为了正义。罗马法与其说是一种正义,不如说是一种仪式的精确执行,它是在这个过程中第一个犯错误的人,通常会输掉官司。在这个过程中,双方都试图用一系列法律格言中的一条来阐述案情,这就是为什么今天的法律充满了费解的拉丁短语,令人恼火,比如?或者,用haec verba?意思是让我们所有人都觉得自己愚蠢或无可救药的天真,并准备接受结果(或买单!) But this obfuscation of the meaning of justice gets a little clearer if we make a sharp distinction between memory as a forensic tool, and memory as a part of what reason is.
The reason we still rely on eyewitnesses in court is the same as our reliance on them in identifying the dead. It is intimacy. It is because we value them that we are called upon to give a name to the dead. But the witness in a court today is too often called upon, not to value, but to evaluate. One recognizes a part of one's domestic life, the other establishes as outlaw to it. This is why the same intuitive reflex can have such opposite rates of reliability. Estrangement is no faculty of identification. The witness demands it must be the one, the loved one in the morgue says it can't be. The point of reliability should be obvious. But if the legal system recognized justice as social peace rather than estrangement, the difference would not be so pernicious.
我对阿兹海默症患者有一点小经验。这样做的一个影响是,我有一种奇怪的感觉,觉得自己也有类似的症状。但仔细观察会发现记忆是如何运作的。当我忘记的时候,我知道这一点,我知道如何刷新我的记忆。但这个过程绝不是访问某些保存的记录。记忆不是头脑中的一个地方,也不是对过去事件的固定保存。这是一连串的提醒,既不是通过关联,也不是通过某些现有的“神经通路”机制。这是一个创造的过程。我们首先记住的是我们在那里的行踪、存在、心情或性格印象。这种感觉是无法用语言表达的,尽管它是一种最正常的精神状态,也许以至于我们还没有抽出时间来研究它。 Science, religion, psychology and even meditative systems let us down in this. But when the trigger is activated the cascade is so spontaneous that all of a sudden what seemed infinitely inaccessible is suddenly pulled into a complete vision and array of feeling. The Alzheimer's victim is bereft of these triggers. This is palpable to any extent of observation. Looking right at the reminder doesn't trigger the cascade of collected thought. This is why there is no locus to who we are, to what mind and reason and memory is. In a real sense it hasn't happened yet. We have to keep doing it, though it is said that if we live long enough we will all lose the faculty to do so. I do know that as I get older I get distracted from the needs of life and more lost in thought. Or is it found? For it is one of the abiding enigmas and vexations of life that we lose ourselves in distinguishing which one is which and remembering what to do next, in an endless sequence of evaluations forgotten the value of it all.

Zeneth Culture's picture

Zeneth Culture

Sunday, November 29, 2015 -- 4:00 PM

"Disability is a matter of

"Disability is a matter of perception. If you can do just one thing well, you're needed by someone." - Martina Navratilova

我们人类有不完美的地方。始终保持积极的态度和略带滑稽的人生观是至关重要的。
https://www.zenethculture.com/life-and-your-numbers/

Harold G. Neuman's picture

Harold G. Neuman

Friday, December 4, 2015 -- 4:00 PM

Just remembered another

Just remembered another Jaspers tidbit:
Truth varies according to the origin of its content.
Wrap your minds around that one, folks. I think it must mean something like: there is no truth other than that which does not require human approval. Or perhaps more succinctly: there are three versions of the truth, 1) what I think it is, 2) what you think it is, and, 3) what it really is.
Warmest regards, Neuman.

Gary M Washburn's picture

Gary M Washburn

Friday, December 4, 2015 -- 4:00 PM

Or maybe he meant something

Or maybe he meant something like Foucault's sense of "archeology"?

MJA's picture

MJA

Saturday, December 5, 2015 -- 4:00 PM

The three versions or visions

The three versions or visions of truth, 1) is, 2) is, and 3) is.
How simple truth is.
= is

Gary M Washburn's picture

Gary M Washburn

Saturday, December 5, 2015 -- 4:00 PM

The ontological fallacy is

The ontological fallacy is what it is. What it is!

Gary M Washburn's picture

Gary M Washburn

Sunday, December 6, 2015 -- 4:00 PM

The rules of evidence are

The rules of evidence are dismissive of a witness's self-examination. The witness is not permitted to question the intention of the questions directed at him or her, nor to adress the jury or judge directly, or to mitigate or qualify responses. Juries, similarly, are expected to be passive observers. In England, juries can interrupt testimony to ask questions, and the prosecution is not a government agent in close association with the police and court, they are contracted, in the same way the public defender is contracted here. An elected prosecutor has every incentive to cheat, and many, if not most, do. It is a perversion of rational investigation. Reasons can always be found to support a predetermined conclusion, especially if contrary evidence is ignored or excluded. The defense may fill in the other side, but this sets up a decision between sides that is toxic to truth, and to justice. We don't chose sides based on the facts if we are not responsible for exploring all evidence contrary to our own prejudices. Basic themes of reason do indeed take on different implications depending on the origin of their terms. What Jaspers was getting at was very likely, and much more fully developed, by Foucault, as in works like The History of Sexuality, and Birth of the Clinic. Are we trapped in the historical terms of our presumed powers of reason, as the jury is trapped in the panel, sworn to silently observe as a travesty of 'investigation' takes place before them, and kept in ignorance of the full scale of their rights, and of the complete process of evidentiary rules? It may be as serious an issue as the accuracy of the perception and memory of the witness that the prosecutor has probably coached him or her in how to deflect the doubts provoked by the defense. Prosecutorial crime is often more eggregious than the indictment. This is especially tragic since what most poor communities need, as much as a good school system and a fairer shot at the opportunity of a good life, is dilligent, but fair and respectful, policing. There is a lot more to perception and memory than systems of observation and retreival. Fallibility is indispensable to a fair review of the facts, let alone the experience of them. To err is human, to lie (and get away with it) is divine!

Michael,
I hope you take the time to read the Euthydemus, you may find yourself eeriely reflected in it.

MJA's picture

MJA

Sunday, December 6, 2015 -- 4:00 PM

I see my reflection in

I see my reflection in everything, equally. =
Reflection
Seeing your reflection on a calm river can reveal a true picture of Oneself. Ripples like complexities and disorders that are normal to life can distort who One really is. During rough times, life can make the truth impossible to see. Calming self externally and internally, One?s true self becomes clear.
找到你的倒影,让自己平静下来,做真实的自己。
And beyond reflection?..
=

Harold G. Neuman's picture

Harold G. Neuman

Sunday, December 6, 2015 -- 4:00 PM

Another fairly learned soul

另一个相当博学的灵魂写了可能是关于真理的权威文章。我推荐它。
Look for: ON TRUTH, by Harry Frankfurt. A small book, to be sure-but so deep in its simplicity.
Neuman.

willfree's picture

willfree

Sunday, December 6, 2015 -- 4:00 PM

Perception is colored by

Perception is colored by expectation. Memory, a questionable perception of the questionable mental trace of an earlier questionable perception, is trebly suspect. I could provide enough examples from my own life to make the reader doubt anything I say.

Gary M Washburn's picture

Gary M Washburn

Sunday, December 6, 2015 -- 4:00 PM

Fine, but does that help you

Fine, but does that help you find your keys? And even if observation and memory are put in their rightful context in a trial, the problem remains how to pursue justice in an era of sense and memory skepticism. DNA sample the world and flood our cities and towns with surveillance? In a world where everyone is watched, who watches the watchers? Too much talk of justice presumes that the purpose of a trial is not to find the guilty and to establish a regimen of reconciliation, but to identify those unworthy of social rights, and to permanently remove them. Where that mood governs the proceedings fallible perception and memory is the least of the problem.

Gary M Washburn's picture

Gary M Washburn

Monday, December 7, 2015 -- 4:00 PM

All those reflections! If

All those reflections! If flattering, I wouldn't trust them. That's why I don't look for my reflection. In fact, it is precisely the problem being discussed here that we too easily see our own reflection instead of what is really there. I suppose there is some virtue in not seeing enemies everywhere that is not our own reflection, which is the other side of the same coin. But it is only where we find only in the stranger an opportunity to be more who we ourselves are that we are ready to do justice. Where memory serves, remembrance and its motive are secreted from each other. With that secretion, tyranny begins.
它是为了推翻记忆所不存在的暴政。如果使用得当,这种不可靠是一种美德。

MJA's picture

MJA

Wednesday, December 9, 2015 -- 4:00 PM

A mental experiment: Try to

A thought experiment: Try to write down your prior day's activities from when you woke to the end of the day in complete detail, when finished, wait an hour and then repeat the exercise and write the story again. Has the story changed in any detail? And if so which is most likely, then which story is correct?
I rest my case Your Honor,
=

Gary M Washburn's picture

Gary M Washburn

Thursday, December 10, 2015 -- 4:00 PM

原告违约?

..., and the judge directs the jury to disregard it. The issue is not that memory is fallible. There is still something we call memory, however fallible. The question is, for what can it be relied on. Sometimes a fallible memory is the most objectively valuable evidence. For instance, where clear forensic evidence proves guilt, can a character witness exculpate?