How Eyewitness Testimony Works(?)

Few things are more compelling than a witness pointing out a defendant in the courtroom as the perpetrator. But few things are also more unreliable than eyewitness testimony. Our memories can be pretty terrible, which matters when you’re facing death row.

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Episode Transcript

Speaker 1 (00:00):
Hey, everybody, it's Josh and Chuck and we're coming to
see you guys, some of you some cities. Just listen up.
That's right, because you know, we just did Chicago and
Toronto and it went great, and I think our topic
of went really well. Sure did. Everyone loved hearing about
That's right. So if you're in Boston, he can come
see us in August twenty nine at the Wilbur Portland, Maine, Maine,

(00:22):
at the State Theater on August thirty. I can't wait.
I'm gonna Labor Day weekend. I'm gonna stay the whole weekend.
I'll be all over Maine. That's great, man. Where else
We're gonna be in Orlando on October nine, and then
on October t we're going to be in New Orleans, Man.
And then later on that month we're doing a three
night stand at the Bellhouse in Brooklyn. That's right. Is
sold out. You can still get tickets for the and

(00:45):
we will see you then. Check it out at s
y s K live dot com. Welcome to Stuff you
should Know, a production of My Heart Radios How Stuff Works. Hey,
and welcome to the podcast. I'm Josh Clark and there's
Charles W Chuck Bryant, and there's Jerry over there, and

(01:08):
this is stuff you should know, the Continuing Courtroom Drama edition. Yeah,
this one. I think if you take our podcast on
memory and our podcasts on police lineups and they made love, Yeah,
then they would have this baby. I just came a

(01:29):
little aroused. Chuck can tell. Yeah, this is uh. I
guess two thousand eleven was the Memory one, so that's
been a while. Yeah. Also you could sprinkle in a
little photographic memory. Maybe that one was just watching. Sure, Okay, yeah,
I know. Hey, Jerry, how are you? That's right? Good,

(01:54):
good answer. So, Chuck, Yes, have you ever been wrongfully
convicted of a crime based on eyewitness testimony? Not convicted,
but you have been indicted on it a crime? Not indicted.
You have been accused of a crime. I've been accused

(02:14):
of crimes. Really, I think you should dish about that.
You know it, crimes against humanity. Okay, I'm gonna take
all that as a no, you never have That's great, um.
But it turns out there are plenty of people hundreds
so far in the US alone, who have been found

(02:35):
to have been wrongfully convicted of crimes. Big crimes, I
mean crimes that have put them on death row, um
based on eyewitness testimony. And in the last few decades
it's become really apparent that eyewitness testimony is is really
not great. I mean we've known it for a long time,

(02:55):
but thanks to DNA evidence coming along, we can now
go back and say, um, yeah, this is this person
was innocent. Actually, yeah, you want to hear something, A
little story. So the UH we worked with a locations person,
actually two people, it's a couple on some of the

(03:17):
stuff you should know stuff back in the day. I
think some of the shorts and UH in locations and
I'm not gonna say their names or anything to protect them,
but they were riding their bikes and we're hit and
run last week and um, she's fine now, but she
was in the hospital. Was it was not great? And
they have I've been following this on social media. They

(03:39):
have video from you know, like everyone has cameras now,
businesses and homes and stuff. They have video of the incident.
They have the the car's license plate as clear as day,
the car as clear as day. The police have all
this stuff, and the police are like, nothing we can
do about it unless you have an eye witness that
can like say who the driver was? What the same

(04:01):
thing that happened to me in l A when you
know I told that story back, Uh in one of
our shows when I got hit and run and I
couldn't identify this young woman in a in a lineup card.
Oh yeah, they're like, sorry, she said she didn't do it.
I'm like, that's all you gotta do is they didn't
do it, But the same thing is happening to them.
They have You wouldn't believe the clarity of the videos

(04:23):
that show this car right hitting them and leaving and uh,
they're like, nothing we can do about it. Man, that
is crazy. So that's like a pretty good example of
the law being slow to catch up to the current
state of I guess the world basically. Yeah, I mean
they're they're not They're working the case and they're trying
to find out who did it, but they can't simply

(04:46):
go to the person's house who owns that car and
like arrest somebody. I guess in a way though that
I mean, it sounds stupid and and dumb, but at
the same time it is kind of reassuring, especially with
the rise of deep fakes, which we've talked to out too.
You can't just fabricate a video, especially convincing one, and
be like, go arrest this person, I guess. So. My

(05:08):
thought though, is like, go bring in the person who
owns the car and you will probably very likely find
out who was driving it. Sure if it wasn't them, Yeah,
especially if you are are really generous with the rubber hose,
you know what I mean, and the d louson I've

(05:28):
met more of the beating with the rubber hose. No,
I know what you mean. Okay, you took it a
different direction. A Rambo in First Blood? What did they
de loust Rambo? Yeah, they d loused him and then
hit him with the fire hose. Okay, huh. But all
this to say, I witness testimony like is what's needed

(05:53):
in many cases to prove guilt. But it's so unreliable, right,
it's like a joke almost. It's well, it's the gold
standard in the American justice system, and I would suspect
just about every justice system that if somebody comes into
a court and points at them, at the suspect or

(06:14):
the defendant and says, I saw them kill that person.
I saw them hit that couple with their car and
drive off. I saw them. Other people who make up
juries will be like, Wow, how are you gonna argue
with that? You can't this person swearing under oath that
they saw them do it. Um, they don't strike me
as a liar. They don't seem to have anything to

(06:35):
gain from lying about this. So I'm gonna go ahead
and believe this this person and convict. But like we were,
we've kind of been toying with a little bit and saying,
like I witness testimony isn't great. Um, you don't have
to have some sort of vested interest in sending someone
to prison. You don't have to be outright lying to

(06:56):
basically send someone to jail who's actually innocent based done
your own testimony. And while you're doing this, while you're
testifying a court, you might actually fully believe what you're saying,
even though what you're saying is fabricated and actually you
don't really recognize the person that you're saying you saw
commit this crime. Yeah, and a jury is way more

(07:17):
likely to uh convict if you're like super super sure
and you're like, oh no, that was the person. I
am positive. But as we will learn as we impact
this topic, um, that that confidence in court is not
there from the beginning necessarily. Yeah, yeah, that's true. But

(07:39):
if you think that confidence sells it, if you have
a cocky witness, they'll just kill the defendant on the spot.
So like, are you one sure? And they go what
did I just say? Exactly? That kind of witness will
send you to the the electric chair or the lethal
injection needle everyday the week. They're called do I stutter witnesses?

(08:04):
Oh all right, let's get into this. We've been dancing
around it quite a bit. It's been a beautiful dance,
but let's get into it. Okay, Yeah, I guess this
nineteen fifty nine paper was kind of says it all. Uh, physiologist,
I'm sorry. A psychologist an attorney named Robert Redmount said
it has been suggested that the presumption is probably warranted

(08:26):
to the effect that a random person give an accurate,
original perception well in the ordinary course of events, reflect
a memory competent to serve most of the purposes for
which it is demanded. Which that's sort of a long
way of saying memory is good enough, right. Yeah. Basically
that that the average person walking around can serve as

(08:47):
a reliable eye witness to a crime basically, And what
what this nineteen fifty nine brief is basically saying is
like this is this is the state of affairs in
the American justice them that if you say you saw something,
and you say you're pretty sure that what you saw,
what you're saying, or what you think you saw is accurate,

(09:07):
the court system can rely on you enough to convict somebody. Yeah,
but almost to the point where it's like, can we
all just get on the same page here and agree
that we'll just believe someone when they say they're they're
really sure. Yeah, I mean it's smacks of that too,
for sure. It definitely does the like I guess the
guy was just trying to shore up any opposition to it,

(09:27):
and I mean that was um but long before that,
there were chinks in the armor of eyewitness testimony and
just how reliable it was. Um So, I mean people
have been using eyewitness testimony for basically ever. It's probably
the oldest type of testimony or that there is in

(09:49):
any kind of court or proceedings or anything like that.
But starting in the early twentieth century, it as psychology
kind of developed One of the first things that psychology
took on was the reliability of memory and eye witness testimony,
and one of the first people to take it on

(10:09):
was a psychologist named Hugo Munsterberg. I got the um
lau correct. Thanks man. He wrote a book called On
the Witness stand In and he was he's known still
today as the father of applied psychology. He was a
psychologist who said, hey, he was how psychology can help
you in your day to day life, especially for day

(10:31):
to day life, is that you're being convicted of a
crime based on eyewitness testimony and um. He basically showed
through a lot of experiments and exercises when he was
a lecturer at Harvard that memory was definitely not um Essentially,
just like a film strip or a videotape or for

(10:52):
today's kids in MP four file, you know that that
we we don't just sit there and record the events
going on around us in the world at all times
and can go back and replay those events in our
lives and it's an accurate rendering of what we experience.
That's just not the case. Well, yeah, and this is

(11:12):
uh with with students where they knew that they were
doing memory tests and quizzes, and they knew that they
were there to do that and had to focus on
this stuff and uh, you really need to concentrate and
remember what I'm about to show you, maybe have a
sandwich beforehand. Yeah, And they were still inaccurate and really
demonstrated what we all now know is the fact that

(11:34):
human memory is very fallible. Like, forget about just happening
down the street. You got a million things on your mind.
You're right in the middle of texting someone and you
look up and you see a crime happen like that
has Uh. After reading this stuff, it seems like very
little probability of you getting that stuff right right. Yeah.

(11:56):
I saw somewhere that smartphones in general are Um, they're
good that you know, they can help capture video of
a crime or a photo of a crime. But at
the same time, they really make a lot of witnesses
unreliable because everyone is so distracted by their smartphones that
they don't really see what's going on or don't you know,
they might have otherwise been a really good witness, but

(12:17):
they were kind of glued to their phone at the time.
I mean, you can that's true without even uh, I
mean that's true about everything when it comes to smartphones.
I wasn't paying attention. I was looking at the phone
or the people that. You know, if I can complain
about concerts again for a moment, go ahead, man. The
people that videotape entire songs are usually looking at it

(12:38):
through their phone, and that's the worst possible way to
experience alive musical moment. It really is, especially when you
consider that they will probably never go back and watch
that video. You know, justin my buddy, uh, my tall
British friend, he he yells from behind them so you

(12:58):
can hear it on the video. You're never gonna watch
it as loud as he can, which is great. He's
probably right like eight percent of the time, I would say,
But I would like to see the next day where
some of those people watch it and they hear justin
in the background, Sam, You're never going to watch it.
They're probably like, what is that guy talking about? Or
he's like the person watching is like, I showed that
guy right, so um Hugo Munsterberg. He wrote this thing

(13:23):
on the witness stand basically saying we should not just
you know, take everyone's word for it. When an eyewitness
comes forward in a criminal proceeding like there's problems with memory,
and I've just demonstrated it. But his writings were largely
overlooked because during World War One he was from Germany,
but he became a German American. Um he wandered around

(13:47):
vocally supporting Germany during the First World War, which is
not something you want to do back then. It's not
a good way to get your book out there. No,
so he was he was basically just ignored for many,
many years, even though he was one of the first
psychologists to take up this mantle. And it wasn't until
about the mid seventies that psychology again took this up.

(14:09):
And there were two psychologists in particular, a guy named
Robert buck Out who basically was was the first to
be like memory is not a videotape is one way
to put his research. And then another um psychologists a
very famous psychologist named Elizabeth Loftus in the later seventies
a few years after buck Out, Um was really the

(14:29):
one whose work kind of captured the popular imagination and
made us all realize that we're just total frauds when
we're recalling a memory. Well, yeah, and with the advent
of DNA evidence, and when you know, all it took
was a building up of cases being overturned because of
DNA evidence where eyewitness testimony that was positive was directly overturned.

(14:55):
You get enough of those mounting up, and then all
of a sudden, the United States has a p problem
on their hands and they have to say, well, maybe
we really need to look into this whole thing about
memory and I witness testimony not being super reliable. Right,
let's take the next thirty years to mull it over. Basically, sure, so, um, yeah,
that was the the Innocence Project in particular. There have

(15:17):
been people working to exonerate people based on faulty evidence,
which really got a punch in the arm or shot
in the arm after DNA evidence, like you were saying,
But the Innocence Project in particular, um was started in
and they've got like I think three hundred and sixty
five exonerations under their belt, one for each day of

(15:37):
the year, exactly, do it on the on the daily.
We did a we did a show on that too.
So yeah, you remembering in we talked to Paula is
On That's right, So I can tell by that sigh,
I think you're ready for a message break, you want
to take one. Yeah, I'm just gonna google some some

(15:57):
Polosan trying to remember who she was. We'll be back
right after this. Alright, So, Chuck, we've been talking a

(16:32):
lot of smack about the human memory. Let's back it
up with some some facts and figures and stuffy. Yeah,
I mean there have been, like you said, the past
thirty years is when the United States started doing I
just said United He started doing more and more studies
on on the human memory and how accurate it is,
and it is really exposed the flaws and biases, um,

(16:56):
and it's really not even I mean, it is memory,
but it's also perception and what we perceive is going on,
and there are a lot of like we don't all
agree on what perception even means, and there are a
lot of different theories about how visual perception works. Yeah,
there's like a two fold issue with memory. There's the

(17:17):
formation of memory and then there's the recall. Right, so
with the formation of memory, it's like, yeah, if you
can't agree on what constitutes reality, you know, it makes
it really tough to perceive reality and like a standard, uniform,
objective way. But you can form a wrong memory that's
like that should stop everyone cold in their tracks, right exactly.

(17:37):
And there's the the this is there's basically two ways
of looking at um at at how we perceive reality.
And it is either reality exists in some way that
we don't perceive and we kind of paint this picture
that we think of as reality but that's not actually
really reality, or reality is reality but we just kind

(17:59):
of um perceive it piecemeal um in in order to
save energy, save time, save storage space, whatever. But the
upshot of both of these, and I really want to
do in an entire episode on the nature of reality someday, okay,
but the upshot of these theories on what reality isn't

(18:20):
how we perceive them is that we basically take what
we need from the environment, from whatever scene we're observing, whatever,
and then we kind of fill in the blanks to
create this complete picture. And in doing so, if if
we're just kind of walking through a meadow or something
like that, enjoying the day, that doesn't really matter, right.

(18:43):
We can kind of recall what that butterfly that flew
by looked like, what its colors were, what the trees
looked like, but if we really dig in, did we
actually look at the trees that kind of provided the
backdrop of the scene or is it just kind of,
uh a conception of what trees in general look like
in that situation. Um, that our minds filled in. And

(19:06):
when people started like thinking about this stuff, not just psychologist,
but neurologists, philosophers, all these a lot of different people
trying to figure out, you know, how we go through
the life and reality and perceive the world. Um, it
became really apparent that we do a lot of shorthand
construction as we're kind of moving through life, and when

(19:27):
we're walking through a meadow, not that important. When we're
convicting a person of um, robbery and murder, then it
does become important. And it is an issue that we
just kind of fill in the blanks to create a
whole picture that didn't necessarily happen. Yeah. That I don't
know if anyone listening has ever seen the hollow mask illusion. Um.

(19:47):
That has to do with gestalt theory basically that our
perceptions are based on perceptual hypotheses. So like that's us
making these educated guests educated. Yeah, educated guests is about Um,
the sensory information that our eyeballs in our ear holes.
And we should point out that I witness testimony can

(20:08):
mean audio like thing you overheard as well. UM, I
don't know how well other senses of performed in court.
I was thinking about that, like, I guess, you know,
did you smell a chemical smell or something like that? That
That would be one, but I mean, I don't know
what else you would like. Did you did you feel
the murderer's touch taste? I don't know, did you lick

(20:31):
the guy who was robbing the gas station? But if
you look at the the great example of gestalt theory
and that UM perceptual hypotheses is the hollow mass. So
if you go online, there's one UM very famous one
of Albert Einstein, and it's basically, someone will show you,
UM what looks like UM, a mask of Albert Einstein's face,

(20:54):
and then they start to turn it around, and about
halfway through you realize that you were looking at the
inside of that mask and not the outside of that mask.
And it's painted, of course, but it's still uh concave,
so it shouldn't look convex, but it yet it does.
And it's a mine trick and it's really freaky. It is,

(21:18):
but it also just kind of goes to show that
our brains leap to conclusions basically. Yeah. Absolutely. Another thing
is that the whole Darwinnian approach is basically, if you're
in a in a dangerous situation, um, your brain is
going to quickly decide what's most important to pay attention
to in that scene. UM, And that that will of

(21:40):
course skew reality depending on what's going on. Plus also
so so so that's point one. Our brains fill in
the blanks probably more than we realize to create our
idea of reality and memory. Right, yes, and even when
we're actually actively taking in information the them just how good,

(22:03):
say like our eyesight is or our hearing is or exactly.
And that's one thing that that defense attorneys, in particular
will Um will try to attack is things like that,
like you know, do you wear glasses or contacts? Have
you ever had lay sick? Was it raining out? Was
at nighttime? You know how far away were you? Street

(22:24):
light was under repair? We have records exactly in the
whole courtroom goes, yeah, it's the big moment, and Perry
Mason shoots a duck. Perry Mason farts in court. I
didn't say that. I said he shoots a duck, all right.
It was his his thing at least at first and

(22:44):
the early episodes, and then the producers were like, this
didn't go a name where we're gonna drop this as
this thing your honor? I object, right, that's right. That
was from episode three. Oh boy. Um, so they're there
has to be a standard here though, Um when it
comes to court and like how well people see? I

(23:06):
mean it can't. I mean it is case by case
and that every case is its own unique thing in court,
but there has to be some sort of standard as
far as like how well does somebody with vision see?
For instance, And there's a guy named Jeffrey Loftus, a
researcher from UH. I believe is that you dub dub,

(23:27):
and he kind of developed this formula on vision over distance,
which basically says, at ten feet you might not be
able to see eyelashes on a person's face. It's two
hundred feet you may not be able to see eyes,
and at five feet you could see a person's head,

(23:47):
but it's just a big blur. So like this could
be uh, and is this the standard that they use
in court. I think he's trying to to make it
a standard, and I'm sure he gets called on as
a professional witness and says all this, But I don't
believe it's it's an actual um, like it's been judged
to be like the standards, like they don't without a
chart in court. No, but I think if you really

(24:10):
wanted to get the point across, you could do worse
than hiring Jeoffrey Loftus. Yeah, and I imagine don't they
also do uh did they test these people? Um? I
don't know. I think if you have a really good
defense attorney, you could probably ask that a witness, if
not go to an optometrist, at least have their um,

(24:31):
their optometrist records subpoenaed. Or in the dramatic TV or
film version, you see the your honor, if I may
step to the rear of the courtroom, and you do
that move and then you know, you hold up two
fingers and you say how many fingers am I holding up?
And then what in the Mr Brady cross is a

(24:53):
briefcase and the guy with the nick brace on turns
his head. What a chump that guy was? It was
not committed, No, that's so great that you said that,
because it was between that or a Perry Mason joke
for me if I was going to swoop in. Okay,
I don't know much Perry Mason. Did he fart in court? No,
I just totally made that up. I don't know anything

(25:14):
about him either. It is no, it was Raymond Burr.
He was ironsides, he was both buddy. But I mean,
if there was ever somebody that looked like he'd fart
in court, it's Raymond Burr. You know, even like put together,
um clean shaven Raymond Burr from Perry Mason. Yeah, he
does look Cassie, doesn't he a little bit? So Okay,

(25:36):
moving on, Chuck. There's also the problem um that researchers
have found that we humans have a finite amount of attention, right,
and if there's a bunch of stuff going on at once,
or we have to pay attention to multiple things in
quick succession, it's been found that there are a lot
of um problems with that that that we don't really

(25:57):
do real well with pace stuff coming at us, especially
when we're stressed out or in a high stress situation. Yeah,
it's like this stuff is really neat there's something called
attentional blink, um, not intentional attentional And that's when, um, like,
when you're just looking around at things anywhere you are,
it feels like one big fluid thing where you're taking

(26:19):
in everything, but that's not really happening. When you you know,
if I'm looking at this coffee cup and then I
look up at your face, there's something called attentional blink,
which is a little blip less than a second where
there is in um, I guess, just an interruption and input. Yeah,

(26:39):
and your attention. Yeah, you know, you're you're shifting from
one thing to the other, and it's not a fluid motion.
It's kind of like a hiccup. But you don't notice this, No,
you don't. It all blends seamlessly because your brain is
filling in these little gaps. But during that period, if
something really vital happened, and that'say half of a second span,
you might not notice it. And because we've already seen

(27:01):
that our brains tend to fill in information to create
a smooth picture of reality. That could be problematic for
the person who you're saying you saw do something or
didn't see the other. Thing about attentional blink too, is
that it really kind of points out that if, um,
if we are really focused on one thing, we might
miss another, that our attention is is very selective. Basically, Yeah,

(27:26):
um yeah, you know, if you're like into your smartphone,
you're not paying attention to stuff going on around you. Um,
even if like you're driving, like if you're driven up
next to somebody and they're driving like thirty miles an
hour under the speed limit, which supposedly is safe, but
you know, they're on their phone and you honk at
them and like flip them off and like throw a

(27:47):
rock at their windshield that kind of thing, and they
don't even look up. They don't there, No, they have
no idea. That's kind of the same thing. But there's
this really amazing video that I hadn't heard of. But
these two magicians I know, Jared and John who are
I hope are working on a podcast um about this
kind of stuff. Um, they pointed it out. Did you

(28:08):
go see that video that was linked in this article,
which one the one that was created by Daniel Simmons
and Christopher shabrists or Chebris where it's the ball passing video. Okay,
so I don't want to give anything else out about
it to everybody. Just go look up Daniel Simmons ball

(28:31):
passing video and prepared to be amazed. But it really
drives home like what the them, Just how focused we
can become at the expense of other information. That's right, Um,
what else? Chuck? Uh? Well, there's something called the psychological
refractory period with the prp UM and that's when if

(28:55):
two things, if two cognitive tasks, and this can include
you know, you seeing things, uh, if they arrive really
closely together, there's a bit of a lag time between
when we process these two things, that first thing and
then that second thing. So if these things are coming
in quick succession, or they are very intense, or there
are a lot of different stimuli, there is a little bottleneck,

(29:19):
a processing bottle neck that can occur, and especially in
a in a like a a scary experience like if
someone sticks a gun in your face or something. The
you know, the big example that you always hear is
like what was the weapon? Was it a gun or
a knife? And it's been kind of shown time again.
If you're if you are, if someone comes and sticks

(29:41):
a gun in your face, you're going to have your
attention on the gun and more so than the face.
M So you might not be able to recall what
your perpetrator look like. Uh. You may have more information
about the gun, which is a little helpful, but not
as much as their face. Yeah. You know, I think
I told you before that time that Umi got mugged. Um,

(30:02):
she was not focused on the gun and did not
know that the guy had had a gun on her
and her friends. Um, when she was asked if there
was a gun at the cops station, she's like, I
actually don't know, Like she didn't process the gun and
her friends were like, yeah, there was a gun. The
guy had a gun, Um, which is I hadn't realized.

(30:23):
Like I get that, you know, not processing something because
of a stressful situation, but it's it's funny, that's like
the opposite apparently of how it usually is. Yeah, and
I think you can sort of train yourself. I mean,
hopefully this kind of thing doesn't happen over and over again,
and like to Umi or anyone else, but like I've

(30:44):
sort of told myself, like, if anything ever happens, try
and keep your wits about you and taking as much
detail as you can and and like repeat it in
your brain over and over. That's just good advice for
like daily living. Sure, that's mindful in this, I think yeah,
I told you before. I think it was the police

(31:05):
lineups one that she was able to pick the guy
out in the lineup, So maybe she was focused on
the guy's face and was missing the gun rather than
the opposite exactly, she was that a finger in your pocket, right,
don't say the second part, So I'm not going to.
I'm just gonna leave it up to the listeners, dirty
dirty listeners minds. So, um, there's also another one for

(31:28):
forming memories that has kind of confounded researchers for a while. Um,
and it's called the own race bias or cross race effect. Yeah.
We talked about this in police lineups, didn't we? I
feel like we did, But I think it's worth going
over one more time. So it basically is it says
that if you are a witness, and you witness a

(31:48):
crime that's that's carried out by somebody from another race
or ethnic group other than yours, you're going to have
a harder time recognizing that person, um than you will
would if they were a member of your own race
or ethnic group. And so the the it seems easy peasy, well,
that you're just a racist and every everybody of another

(32:10):
race looks alike to you. That's not the case. They
found that people who score UM low on questionnaires about
being prejudiced um also are subject to the cross race effect,
and that it's across the board for everybody of any race.
They're all equally subjected or they're equally um, what's the

(32:31):
word victims of it? I guess yeah, miss uh, it's
in there somewhere misidentified. Now, they're equally susceptible. Susceptible. We
got there, we got there, chuck. Yeah, that's true. Uh,
and that's really interesting, Like you could you could test
out as the least prejudice person on the planet and
still misidentify someone um from another race. Yeah. And they

(32:55):
think that different races have different defining characteristics and that you,
as a child and probably well into adulthood, are kind
of trained to pick out the identifying characteristics of people
of your own race UM, which doesn't necessarily apply to
people of other races. And so people really are bad
at distinguishing different members of different races, not because they're

(33:18):
racist and everybody looks alike, but because they're looking for
the wrong cues distinguishing cues. Yeah, and you know, sometimes
people can look like other people. It's uh. In the
famous cases section, I'm gonna go ahead and pick one
out of there, very famous case of Ronald Cotton. Uh

(33:38):
In he was identified as a perpetrator of a rape
sentenced to life in prison. And uh, I went back
and I looked at the person who eventually was found
out to be the the he was exonerated Cotton was,
but the real guy, Bobby Pool that saw side by
side images. These guys look a lot alike. They look

(33:59):
at a lot out of like, like their noses are different,
but if you block out their nose, they're the lower
half of their face and their eyes and forehead are
really really similar. And I think that's just a case
of really bad luck. It was really bad luck. It
ultimately pan out to be really good luck. But I mean,
the the victim, the eyewitness was the victim a woman

(34:20):
named um Jennifer Thompson. And during the rape she did
she took your advice and like, kept her wits about
her as much as possible and took the opportunity to
study the guy's face. But because Pool and Cotton looked
so much alike, Um, she there was, there was. It
was a case of mistaken identity of a witness who

(34:42):
actually is we'll see. Was kind of unsure at first,
but became more and more confident, which is a big problem. Um.
But when Cotton was exonerated, Um, Jennifer Thompson and Ronald
Cotton went on to write a book about the whole
thing together and their friends. They got to be friends
because she experienced a tremendous amount of guilt for identifying
this man and him serving time for something he didn't do.

(35:05):
And yeah, they wrote a book together, which is now.
I was like, oh man, that's tell me that's going
to be a movie soon. And as of like a
couple of months ago, it was. It was optioned O
your film. Nice. It's called the books called Picking Cotton.
Oh my, uh yeah, I know, um Picking Cotton colon
Our Memoir of Injustice and Redemption Semi colon. Oh god.

(35:28):
So yeah. The good luck he had, though, was that
Bobby Pool and Ronald Cotton were in the same jail
together and they were frequently mistaken for one another. That's
how much they really looked alike, and I guess um
Bobby pool um blab to another inmate that he was
the one who had really raped Jennifer Thompson and that

(35:49):
Cotton was in there, uh wrongfully, and that word got
around and then finally, thanks to DNA evidence, Ronald Cotton
was was excluded from the crime. Yeah, nice sending to
that story, it is, that's the only one in the
list that does have a nice ending there, that's true. Uh. So,

(36:10):
here's the other thing with eyewitness testimony or should we
take a break to all right, let's take a break
and I'll tell you about that other thing right after this.

(36:46):
So here's the other thing about eyewitness testimony is that, uh,
like you have to do this a bunch of times.
It's not like you identify someone in a police lineup
and then you're in court the next day. You identify
someone in a lineup, and then you're gonna get grilled
by cops after that, and then you're gonna get talked

(37:07):
to you by your attorney beforehand, and you're gonna be
recalling this and describing this scene and this who you
think is a perpetrator a lot of times. And every
time this happens, Um something can go wrong with your
recall basically, yeah, yeah, So, I mean, like we've talked
about this so many times, but every time you recall

(37:27):
a memory, you are adding to it. You're um, you're
adding more information to it, right, and that information can
be incorrect or flawed. And if we, if our brains
kind of strive to create as complete a picture as possible,
if the memory originally is incomplete, the more we recall it,

(37:48):
the more we're gonna round it out to create this
this this picture. And since part of the process, like
you're saying, of going through the criminal justice system as
an eyewitnesses to recall over and over and over again,
by definition, that process um leads to contaminated evidence, in
this case, the evidence of eyewitnesses um testimony. Yeah, and

(38:10):
you know, not to mention when cops get in there
and they ask leading questions a lot of times, and
even this one example is really great, even swapping out
one word that you might not think matters if if
you hear the questions did you see the broken headlight?
As opposed to did you see a broken headlight? That
takes on a whole different meaning because in that first one,

(38:32):
the cop is basically saying there was a broken headlight
and did you see it not? Was there one? Yep?
That's called the misinformation effect, and it can be as
innocuous as that it can be purposeful, like if a
cop believes that the suspect is the one UM. Cops
have been known to ask leading questions, and when you
have an eye witness who's kind of so so on something,

(38:57):
after a few leading questions and they're answering, they can
become more and more confident in their um in their
their memory, their recall of the event. And then that
coupled with the fact that well, this is the right person, obviously,
because the cops wouldn't be prosecuting UM or arresting somebody
if it wasn't the right person. That just gives the

(39:20):
whole thing even more confidence. And studies have found over time,
the more confidence um or the the longer and more
often a memory is recalled, the more confidence grows associated
with it. Right, right, So there's this, there's like a
um a negative correlation over time between confidence and accuracy

(39:45):
of a of a memory over time. That's a big
distinction that we'll get into later. But the longer it
goes on, so say like from the time of crime
occurs to the time the court date comes or the
trial starts could be a year, and you, the eyewitness,
might have had to recall this for half a dozen
people at least, not to mention all the friends and

(40:08):
family that you've shared the story with. And so what
a lot of people say is by the time maybe
the second, third, fourth time you're recalling this, you're not
recalling your original memory any longer. You're recalling the story
that was helped to be fabricated by the cops and
the prosecutors and in some part by yourself. Just from

(40:28):
telling this. You're recalling the story. You're not recalling the
actual memory. And that's a real problem because that's how
people get um wrongly convicted by eyewitnesses who go into
court and say, I'm a certain that that was the
person that I saw commit that crime. Yeah. And the
thing I mean, if you just think about in your
own lives, uh not, I mean, forget crimes and forget courtrooms, Like,

(40:52):
just think about stories that you like, great stories from
your life that you've told a bunch of different times
about this one time when like these become so burned
in your brain as these great stories that like I'm
always curious too, Like I wish I had video of
these stories as they happened. Does It'll be kind of
fun to go back and see this funny story about

(41:12):
when like my friend and I got shaken down by
the Texas Highway Patrol. Like I tell the story all
the time, but it turns out, wonder what really happened
that day though, right like by the by the end
of the store, by the time the story is told,
it's like Chuck Norris himself as Walker Texas Rangers doing
the search, or or my ghost story in Athens, Like

(41:33):
to me, I tell that story exactly as it happened,
but who knows. Well, yeah, it's kind of like you're
playing a game of telephone with yourself over time, you know,
like stuff just gets kind of muddled and again, normally
this doesn't matter, you know, unless you happen to be
telling a bit of a fish tale to somebody who
can't stand fish tales and and calls you out on it.

(41:55):
It doesn't really matter, right, Like it does matter in
a court of law, and the fact that the courts
have continued to pretend like this this isn't an actual
implication of the human memory. The human memory is actually
infallible and just continued on with eyewitness testimony has been
a problem in the past. I'm not sure if we've
gotten that across or not. And consider this too, that juries,

(42:19):
I mean, we talked about that confidence building over time.
By the time you get to that jury and you
are super confident, that's gonna have a huge impact. Juries
are going to be far more influenced by a confident
witness than someone's like, Hey, I'm pretty sure, but you know,
if I'm really being honest, because I'm on the witness stand,
I can't be sure. Yeah, that is a rare eye

(42:41):
witness from what I can tell that that by the
time the trial comes along, they have been so prepped
and and um guided and have become so confident that,
from what I can tell, it would be really rare
to hear an eye witness be like I'm not so sure.
Maybe they probably wouldn't make it to the wit in
a stand because the prosecutor doesn't want somebody like that

(43:03):
on the stand. So what you're gonna hear in court
is yes, I'm absolutely sure, And you know, juries are
just normal people. They're not doing the research on you know,
the possible infallibility or the possible fallibility of eyewitness testimony.
So it's up to the defense attorneys to kind of

(43:23):
poke holes in this stuff, and so they will. But
for a long time, this was really surprising to me.
I had no idea um courts wouldn't allow expert testimony
that that basically taught jurors how many problems there are
with human memory, and that eyewitness testimony is not all

(43:44):
it's cracked up to be, and that not only should
you not be wowed by the confidence of somebody who
comes into court a year after the crime is certain,
you should probably discount that that testimony you all together. Yeah,
And the reason that they weren't allowed is that they
claimed that was common sense, Like everybody knows that our

(44:08):
memories aren't great, and eyewitness testimony probably isn't great, Whereas
it seems to me obvious that you would want to
get an expert in there to at least explain this stuff,
especially in like a capital case. Yeah, I mean, you
can still make up your own mind, but at least
know the facts and the science behind eyewitness identification, so

(44:29):
you can like take that into consideration as a juror. Right,
that's just not the case, that wasn't it. But then
apparently they started um turning overturning convictions because the expert
witness on eyewitness testimony UM was disallowed. And once that
started happening, they started allowing them in the actual trials.

(44:51):
But that's kind of like, if you have a defense
attorney and you're you're, you know, being um tried for
a really important cry that you could get some serious
time for. Do you want that attorney to bring in
an witness, an expert witness on eyewitness testimony? For sure? Yeah.
The Supreme Court themselves in nineteen seventy seven ruled seven

(45:13):
to two, uh, that eyewitness testimony is constitutional. It does
not violate the fourteenth Amendment, even if it's suggestive. But
they said it was subject to five factors. That just depends.
It's a case by case thing. But UM, the witness's
degree of attention, So you have to determine that, um,
the opportunity of the witness to view the criminal at

(45:35):
the time of the crime. So I guess just literally
physically were you able to see this happen right, or
smell or here or lick the criminal? Um? The accuracy
of the prior description of the criminal. That's a big
one and that still holds up today. Yeah, like if
if you told the cops initially that the guy had

(45:55):
a mustache and you didn't have a mustache, you're going
to hear about that from the defense during during the trial.
And we'll get into that later on. But that that,
you know, that sort of virgin description, is that the
right word? I love it is the one that really
should count sure, all right? And then what were the
last two factors of the five um the level of

(46:18):
certainty demonstrated at the confrontation. And by confrontation they mean
that that's the thing that you always see on like
courtroom dramas where the witness they say, you know, do
you see the perpetrator here today? And the witness says, yes,
that man there, and then they say, let the records
show that the the witnesses pointing at the defendant. Then

(46:39):
then Perry Mason farts, right. That's the that's the particular
one that's under attack today because they're saying, like, how
certain does that witness seem when they confront the defendant
in court? And then the last one is the time
between the crime and the lineup, like, you know, was
it What if the witness saw the crime and then

(47:02):
the cops don't catch the person for you know, three months?
Is that too long? Like does the witness become unusable
at that point? And those five those were the tests
for constitutionality of an eye witnesses testimony. Yeah, I think
those are five pretty decent factors to consider. Yeah, except

(47:23):
for the one, the one about the certainty demonstrated confrontation.
And that's the big battle toy, because some people are like, look, man,
if human memory is that fallible, maybe we should just
get rid of eyewitness testimony altogether. Right, But now that
I think is the approach, Like, hey, why don't we
just treat it like anything that can be contaminated from uh,

(47:45):
from like physical evidence, Like, why don't we just treat
this like physical evidence and say, you know it was
that again, that virgin identification is the one that counts,
and everything after that is tainted. Yeah, And so everybody
on this there's a there's kind of a battle over
just how much confidence relates to um accuracy and memory. Right,

(48:09):
but both sides say everything after that first recall, whether
it's telling the cop on the scene of the crime,
what you saw or whether it's the lineup wherever it is.
The first memory test is what it's called UM. The
first time you do that, that is the only evidence
that should be admissible, and everybody can talk about that evidence,

(48:31):
and you can come to court and describe that evidence,
but every other time you recall it after that, it
should be considered contaminated evidence, just as much as you
would consider um, somebody dropping a blood on a blood
sample as contaminated, or smearing a fingerprint is contaminated. Same thing.

(48:52):
That's the big, the big trux. Everybody says, disregard everything
after that. Where they disagree, though, Chuck, is just how
much during that first UM, that first memory test, how
much confidence is correlated to accuracy? And some people say
it's very highly correlated. Like one guy said that in

(49:15):
I think fifteen different experiments, they found that the accuracy
was accurate. Um confidence indicated in accuracy. And other people
are like, that's flim flam. Don't listen to that guy.
But that's the battle that's going on right now. But
everybody agrees the whole courtroom, that's the man right there

(49:37):
that that shouldn't hold any water whatsoever. The problem is
that holds the most water, because that's what's done in
front of a jury. These are human beings. You know,
someone might carry that kind of confidence, uh in every
area of their life, whereas someone else might be very
unsure about everything in their life, and that wouldn't be

(49:58):
a time for them to be like, you know, someone
who's not very confident, it's probably gonna have a hard
time being super confident about something this important, sure, you know,
but you also could imagine that that person would maybe
be more easily coached than than somebody who does have
a lot of self confidence. Yeah, and that the phrase

(50:18):
this is that's what it says. The T shirts say,
coach him up. So you want to go over any
of these other ones, I guess we can. I mean,
this is all sort of innocence projects stuff. Um, I mean,
there's certainly been plenty of examples over the years. I
think of the three and well, how many you said,
there's three fifty two? Now three that I saw three

(50:41):
sixty five convictions at this time. Let's just say it
was three forty nine that they had overturned. Seventy of
them were based on the testimony of an eyewitness and
this is just death row, like forget muggings. Yeah, the
I don't know if it's all just death row or not,
but that's it's some of these two were not just

(51:03):
single witnesses, multiple eyewitnesses, which if there's one thing that
basically says there was a copper prosecutor who coached everybody
to basically share the same story, that's a it's a
overturned conviction with multiple eye witnesses that DNA evidence shows
we're all incorrect. Yeah, this one right here was especially maddening.

(51:25):
Jerome White in ninety nine was convicted of rape and
robbery and he was exonerated twelve years later. But the
real guy who did the crime was in the actual
same lineup where White was identified. So that one's especially
tough bill to swallow. The one that gets me. Um,
do you remember Troy Davis. Like back in two thousand

(51:47):
and eleven, Georgia Um executed Troy Davis for the murder
of a cop, Mark McPhail um, Right, yeah, Don in Savannah,
and there was no physical evidence and no weapon, nothing
tied Troy Davis to the crime except for nine eye witnesses,
seven of which recanted their testimony, and um, there was

(52:12):
a big deal because a lot of people are like,
it looks like Georgia's going to execute an innocent man.
We need to get this commuted to a life sentence
so we can try to figure this out. And there
was a petition that went around I remember signing it.
There was six sixty thousand signatures on this petition, and
it still didn't get his sentence commuted, and Georgia executed
what was almost certainly an innocent man for the murder

(52:35):
of Mark McPhail. Yeah, that was tough, which also means
that the murderer of Mark McPhail is still out there somewhere. Yeah.
I think that's not mentioned enough in these cases. It's
like it's obviously we should think about the victim, then
the second victim, which is a person falsely accused, and
then there's also a murderer out there. Yep. Maybe, Yeah,

(52:57):
that was a That's another episode I want to do,
is is you know times when the the um when
almost certainly innocent people were executed. Okay, there'll be a
fun one. That's a good title for the You gotta
put the m in there too. Yeah. Uh, well, that's
it for eyewitness testimony unless you have something else. I

(53:18):
got nothing else. Well, Chuck says nothing else. I got
nothing else. So that means everybody, it's time for a
listener mail. This is a very sweet email. Hey guys.
On Father's Day in two thousand fifteen, our son Aaron
died from cancer at the age of forty. One of
his last wishes was for his beloved Australian shepherd dog

(53:38):
Scully to live on a family farm with some wonderful
friends he knew from Pennsylvania, U scullies with was with
us in southern California at the time, so I began
looking at options to send her back, and it became
obvious at driving Scully to Gettysburg was the only true
way to say goodbye and carry out Aaron's wish. I
announced that the family I was taking her back, and
our daughter, who would come home to be by a

(53:58):
side while he was in auspice, quickly said she wanted
to come with me. Without any further delay, the three
of us took off across the country. After a few
hours of listening to the radio, our daughter Brandy said,
do you want to listen to some podcasts? Sure, was
my response. What's a podcast? So she plugged in her
phone and started an episode of Stuff You Should Know,
And from that moment on, for the next four days,

(54:19):
we listened to an endless stream of you guys. I
want to thank you for helping us cope with the
pain and heartache we were dealing with your banter and fun.
We're very therapeutic as my daughter and I traveled across
country with our thoughts and Scully. Being with my daughter
and sharing all this time together with you by your
sides was one of the best experiences of my life.
Given the circumstances, I now listen to you guys often,

(54:42):
and my daughter even bought me a Jerry quote blank
T shirt as a reminder of our time together. And
that is from Doug and Brandy Bell. Thanks a lot, Doug,
and thanks a lot, Brandy. I like the cut of
your jib for suggesting stuff you should Know. Yeah, terrible circumstance,
but I'm glad Scully's on that farm in Pennsylvania. Thanks Doug,

(55:05):
Thank you, Brandy and uh On behalf of all of
us our deepest condolences. We're glad that we could have
some small part in making it a little better for
you absolutely If you want to get in touch with us,
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