Change blindness and the fallacy of the all-remembering cop
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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about 1 year ago
Heres what my husbands attorney did years ago:
We replaced our old beat up car so we were looking to get rid of it. My husband sold it to a guy at work for a few hundred bucks.
A short time later, my husband received a ticket for “solicitation” in the mail.
We never connected the 2 events together until much later.
We had proof that my husband wasnt trying to pick anybody up. We had gone shopping that evening and had a receipt showing the time was a 2 minute difference from the time the cops say he did.
We hired an attorney, etc. The day before the hearing, the attorney called my husband. He said they would be driving to court separately in the morning. He told my husband not to approach him, not to talk to him, not to acknowledge that they knew each other, etc, and the attorney would do the same. When his name was called, the attorney told him not to stand up. He instructed my husband to sit in the back of the courtroom.
When my husband came home after court, he said it was like a “Perry Mason” moment!
My husband sat in the back, his attorney was in front. When my husbands name was called, the attorney stood up, looked around and said he wasnt ready yet. (Giving the impression that my husband hadnt arrived, I guess.)
Finally, his case was the only one left. His name was called. Nothing happened. His name was called again and again nothing happened. Finally, the third time his name was called, his attorney stood up. He asked the arresting office (the decoy) to go through the pictures she had from that night and find my husbands. It was obvious she was making a guess. She picked a man of a different race.
The attorney then asked her to point to my husband in the courtroom. She looked around then finally picked someone out.
The attorney asked my husband to stand up. My husband said there were gasps in the courtroom when he stood!
His case was dismissed! LOL
Turns out the car was the problem! He sold it to a guy at work who went home and that same day sold it to a neighbor who had not registered it in his name. HE got arrested for trying to pick up a prostitute and said the only ID he had was the car title.
Hard and expensive lesson to learn!
about 1 year ago
The disbarment wasn’t for the traffic case, really. Check out the opinion and decision from the link. The attorney/respondent has a history of sanctions, culminating in engaging in an unsecured, and unfair loan with a client.
Your point is not lost, but we should proceed with in-court “experiments” carefully; never spontaneously.
about 1 year ago
Thanks for pointing out the error. Goes to show that you really shouldn’t listen to anything I say.
about 1 year ago
I will update the post to reflect the error.
about 1 year ago
There is hope on the eyewitness ID expert front — Utah issued a great case at the end of last year encouraging admission of expert testimony on eyewitness ID. Check out Utah v. Clopten,
http://caselaw.lp.findlaw.com/data/ut/cases/appopin/clopten053008.pdf
In Velasco v. Commissioner, the CT appellate court noted (in a footnote) that eyewitness ID experts are not prohibited in CT, tho two decades-old appellate cases disfavor them. (There are two cases pending on this before the CT Supreme Court, one was argued 15 months ago, so we may see a decision this summer.)
about 1 year ago
More good news: Use of Eyewitnesses in New Jersey Courts Needs Change
about 1 year ago
Related: The “Selective Memory” filter in DUI trials.
Via DUI Blog.
about 1 year ago
The DUI blog misses some other options for cross.
The Eyewitness ID and the false confession scientists will tell you that perception can be significantly affected by expectation. If the police officer expects when he or she makes the stop that the driver is drunk, he or she will interpret any ambiguity in a way consistent with that expectation. Add to that, memory is affected by suggestion, and after-acquired information — if the driver flunks the breathalyzer, makes incriminating statements, and/or other witnesses interviewed by the officer make claims about the driver’s conduct and the officer is aware of this when writing the report, he or she may honestly recall the driver’s behavior as more drunk than it was. Memory, of course, begins to degrade almost immediately, and will degrade most after the first hour, creating even more problems for the good-faith effort to write a report afterwards.
—LJS