As you can see, the layout and design has been revamped. It’s still a little buggy, so bear with me as I try to figure it out. As always, if I can’t, I’ll just go back to the old design. Kthxbai.
Change blindness is a visual perception phenomenon in which the human mind fails to detect pretty significant changes in our surroundings and distorts our memory.
The most recent famous example of change blindness and its relative, inattentional blindness, is the “count the passes” experiment, which I’m sure everyone’s heard of by now (read the NYT review of their book on the subject). What that illustrates is that when our mind is focused on one task, we zero in on it at the expense of most things around it. For the criminal defense lawyer and the criminal justice system, this is a particularly troublesome issue.
Eyewitness misidentification has become the number one cause of false convictions and it’s easy to “see” how. During a particularly stressful event, when combined with weapons focus, the human mind zeroes in on one thing and pretends to see the others. It fills in the gaps as it were and it is on this peripheral vision that faces are remembered and convictions are obtained.
But there’s a problem with remembering faces. Look at this video:
The study indicated that at least half the subjects did not notice the change in the participant. That’s pretty stunning. If there’s one thing that this new tidal wave of research on memory tells us, it is that memory is fickle and malleable and generally not very reliable. Memory can be distorted, can be reaffirmed by what we believe we saw and not what we actually did see and can be manipulated by others.
Take the sad case of Jerry Bordeaux and Roger Christianson. Bordeaux, fighting a traffic ticket, hired Christianson to represent him. Months later, when the matter was called to trial, Christianson answered for Bordeaux and started questioning the officer:
When the case started, the sole witness was Officer Coronado, who had ticketed Bordreaux. While Officer Coronado was on the stand, Mr. Christianson asked him:
“And what was I wearing?”
“Had I cut off my beard that day?”
“Was I wearing a beard that day?”
“I am the driver?”
After Officer Coronado identified Mr. Christianson as the person he had ticketed that day, Mr. Christianson revealed that he was actually the lawyer! What a brilliant ploy — if Officer Coronado couldn’t even remember which person he had ticketed, how could he be certain of what Mr. Bordreaux had done. By switching places with his client, Mr. Christianson impeached the reliability of Officer Coronado’s memory.
Gotcha. The downside, of course, is that Christianson violated the ethical rule of candor to the court in its most literal sense and unfortunately is now disbarred. The irony is that the court routinely continues to receive less than honest information during trials from eyewitnesses, the State and judges frequently turn a blind eye to the one piece of evidence that would expose the truth about the inadequacies of eyewitness identification. Most courts don’t yet permit expert testimony to be presented to juries.
Cops, on the other hand, are permitted to strut into court and testify as if they come from a higher breed: their memory is sharper and always accurate, they never lie, their motivations are pure and honest. A lying cop is never lying.
If an officer, so trained in the art of observation and attention to detail, can be so easily fooled by a wily lawyer about an identification made without much stress, in broad daylight, how are we, as a people, to rely on the identifications made by those under extreme stress and threat of a weapon in their face? Yet it is on the backs of such dubious declarations of confidence that we banish people to serve decades of incarceration and meet every effort to expose the shaky foundations of that conviction with rock-like resistance and scorn.
You think you’ve seen the “count the passes” experiment? Watch it again:
It is my intent to henceforth show this video to every single jury in every single case that relies on eyewitness identification. Any ideas on how?
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