Science Magazine’s Review of Failed Evidence

The current issue of Science magazine contains a review of Failed Evidence: Why Law Enforcement Resists Science (NYU Press, 2012).  Here is a brief excerpt from the review:

Although science has long been recognized as our most reliable pathway to truth, people are sometimes reluctant to accept scientific evidence, particularly when it challenges established practices or cherished beliefs. In Failed Evidence: Why Law Enforcement Resists Science, David A. Harris accuses police and prosecutors of unwarranted skepticism toward science and tries to explain their perspective. His provocative book will interest those concerned broadly with rejection of science as well as those interested in the U.S. criminal justice system.

Science is published by the American Association for the Advancement of Science.

Eyewitness identification and Other Failed Evidence Issues on Minnesota Public Radio

In connection with my talk today, Nov. 8, on Failed Evidence at the University of Minnesota Law School, I’ve been interviewed by Minnesota Public Radio.  The interview is posted today as part of The Daily Circuit program. You can get to it here.

Failed Evidence on WYPR Public Radio’s “Midday” Program

I was a guest on WYPR Public Radio’s “Midday” program today, discussing Failed Evidence.  Today was the monthly “Midday on Science” show, and host Dan Rodicks and regular science contributor John Monahan asked great questions on everything from DNA to more traditional forensic sciences to eyewitness identification and false confessions.  Listeners asked terrific questions too.

You can hear the whole show by clicking here and clicking on the audio button.

Failed Evidence in NY: Today, Sept. 20, 5:30 p.m. at John Jay College, NYC

Today, September 20, at 5:30 p.m., I’ll discuss Failed Evidence: Why Law Enforcement Resists Science (NYU Press) at an author’s talk and panel discussion in New York City at John Jay College of Criminal Justice today, September 20, at 5:30 p.m.  Full details are here.  The talk is free and open to the public.  The talk will be followed by a panel discussion by four members of John Jay’s faculty:  Margaret Bull Kovera (Psychology), Nicholas D. K. Petraco (Forensics and statistics), Lawrence Kobilinsky (Forensics and DNA), and Eugene O’Donnell (Police Science and Criminal Justice Administration). The panel will be moderated by Zachary Carter, former U.S. Attorney for the Eastern District of New York.

Why Does LAPD Resist Science on Eyewitness Identification?

Why has the LAPD chosen to remain resistant to science-based eyewitness identification practices?

The title of an August 24 LA Times article says it all: “LAPD Reluctant to Change Its Handling of Photo Lineups.”  Having lineups conducted by someone other than the detective assigned to the case, who knows which photo shows the person they suspect, is backed by decades of science, but the LAPD opposes it.

The reason for having someone other than a person who knows the “right” answer administer the lineup is based on a well-established scientific protocol to avoid unconscious human bias.  Researchers long ago established that when the administrator of an experiment gives the subject choices from which to pick, the subject picks the right choice more often when the administrator knows which choice is the right answer.  This is called the experimenter-expectancy effect.  It is a form of cognitive bias, in which the person running the experiment who knows the preferred answer gives the subject making the choice subtle but unmistakable cues, without either intending to or realizing it.  To avoid this, scientists :”blind” the person administering the experiment and communicating with the subject.  The administrator therefore does not know the right answer, and therefore cannot communicate it.

Blind experiments are among the most basic requirements of science; we would never take an over-the-counter medicine if we knew that it hadn’t been tested this way.

And yet, with jurisdictions as different as New Jersey, Connecticut and Texas going with eyewitness procedures based on science, including blind lineup administration, LA Police Chief Charlie Beck continues to resist.  According to the Times,  Beck said ”if you don’t adhere to the rules, either process is flawed. It’s more important to do them correctly than it is which process you use.”

No — wrong.  I’m an admirer of Chief Beck (and his predecessor, William Bratton), after seeing the transformation of the formerly-broken  LAPD into one of the better large police departments in the country.   But in this instance, Chief Beck is wrong.  What’s important is to move to a process that produces measurably fewer errors.  Sure, people can screw up anything by doing it wrong.  But the evidence is not in doubt: putting a person not involved in the case in charge of lineups eliminates bias — not because police are bad or unfair, but because they are human beings, subject to the same cognitive errors all  human beings are.

If Texas Can Make Some Eyewitness ID Reforms, Why Can’t Other States?

Texas leads the nation in wrongful convictions.  That’s why it’s interesting to find some of the state’s law enforcement leaders no longer mouthing the tired old tropes about why they can’t change eyewitness identification procedures.  The state mandated some changes with a new law, which takes effect on September 1.    So now some members of law enforcement in Texas say: it’s important, and we’re going to get it done.

A bit of background: last fall, two state senators introduced a bill requiring some basic science-based reforms in eyewitness identification procedures.  The bill passed, and on September 1, police agencies conducting eyewitness identifications must do so using a sequential process (showing members of a lineup or photos of a lineup to a witness one person at at time).  Police also must hold “blind” lineups, by having the lineup or pictures shown to the witness only by someone not involved in the investigation.  And each agency must adopt a written policy on eyewitness identification. The bill requires other reforms, too.

When changes like this are proposed, there is usually wide resistance by police and prosecutorial leadership: these things will cost too much, be too logistically complex, and will be far too difficult for small agencies.

This is what made an article I saw in the Corpus Christi Caller-Times so striking.  The piece concerned training for law enforcement on the new eyewitness procedures, conducted by Nueces County District Attorney Mark Skurka.  According to the article, Mr. Skurka told about eighty officers  that “the changes came about because of an increase in exonerations due to DNA evidence.  Law enforcement and prosecutors previously relied mainly on eyewitnesses, he said, but that practice caused many wrongful convictions.”  This made the reforms necessary, Skurka said, and “whether you have a two-man agency in Driscoll or a 150-man agency in Corpus Christi,” every agency will have to get on board.

Perhaps there’s nothing more to this than the fact that the legislature required the changes.  I have no idea whether D.A. Skurka  believed or articulated these ideas about wrongful convictions and eyewitness testimony before the legislation or not.  But maybe that isn’t the point.  Once there is a requirement in the law, he has to move his people toward science-based best practices.   So, for advocates of change, making allies in the state legislatures to move these practices into law means everything.  (See Chapters six and seven of Failed Evidence, available next month.)

Why NJ Is Ground Zero for Science-based Eyewitness Identification

Readers know that New Jersey requires its police and prosecutors to follow the best-research-based practices for identification procedures.  My book Failed Evidence, due out in  September, presents the story of how New Jersey started down this path and became ground zero on eyewitness evidence.  And in a recent post here, I described how the New Jersey Supreme Court began to require comprehensive jury instructions based on the same science.

Here’s a related question: What’s the motivation at work here?  Why do New Jersey criminal justice officials think the new, science-based  procedures are important enough to require them?

One answer seems to be the frame of mind with which folks in New Jersey approach their duties in the justice system: they believe we should do the best that science allows us to do to get it right.  In an article entitled “NJ Courts View Witnesses Skeptically,”  published August 4,  officials articulate this idea eloquently.  According to retired New Jersey Superior Court Judge Dennis Braithwaite, New Jersey’s “landmark” jury instructions originate with what we know from decades of research.  “This is all based on deep review of the scientific research on eyewitness identification, and courts in other states will look to see how our Supreme Court processed that research.”

But there is also a heavy dose of pragmatism at work: officials also believe that all of the new procedures will save the state money by avoiding costly wrongful convictions that could bleed the state treasury for years and erode the integrity of the criminal justice system.  And the costs of implementing the new procedures — such as having lineups administered by officers not involved in the investigation of the case — turn out to be relatively easy to manage, even for small agencies.

As we explore why law enforcement resists science, jurisdictions like New Jersey that have taken the bold steps necessary to bring their practices into alignment with the best the research has to offer, become examples of why resistance is less and less tenable.  If you’re moved to comment, please tell us about other jurisdictions that have made similar leaps.  (Hello, North Carolina?)

Examples of Law Enforcement Resistance to Science: Part I

My book is subtitled, “Why Law Enforcement Resists Science.”   Here’s what I mean.

Three of the most common causes of wrongful convictions are incorrect eyewitness identifications, false confessions, and faulty forensic testing.  In each of these areas, scientists and researchers have produced considerable scientific research that meets  the highest scientific standards for rigor, analysis, replication, and review.

In all three of these areas, the research has two important aspects.  First, it has uncovered the investigative practices that lead to errors.  Second, it has proven that changes in procedure can reduce the risk of errors, sometimes dramatically.

Here’s an example, from the area of eyewitness testimony.  Thirty years of scientific research has shown us that using simultaneous lineups, in which witnesses see a group of possible suspects together, increases the risk of incorrect identification.  Showing the witnesses the members of the lineup sequentially — one at a time — reduces the risk measurably.  Similarly, having the lineup presented to the witness by an officer involved in the case, who knows which person in the lineup is suspected by the police, increases the risk of an incorrect identification.  But using a “double blind” process, in which neither the witness or the person presenting the lineup to the witness know who the right suspect is, reduces the risk of mistakes — again, measurably.

So, how many U.S. jurisdictions — states, counties, or cities — require sequential, double blind lineups, years after science told us how to avoid these mistakes?  According to the Innocence Project, just ten: two states, New Jersey and North Carolina; the cities of Boston, Northampton, MA, Madison, WI, Winston-Salem, North Carolina, and Virginia Beach, VA; and Ramsey (St. Paul) and Hennepin (Minneapolis) Counties in Minnesota and Santa Clara County, California.  Ten jurisdictions, after more than thirty years of science.

Now that is resisting science — on a massive scale.