It's a warm summer evening in Virginia, where a nine one one operator answers a call. There's a woman on the other end of the line. She says she's been attacked. Police arrived at the victim's home and they take a statement. The victim, a white woman, says that as she was walking to her apartment, she came across a man laying
on the ground. He was clutching his leg. She thought he must have fallen off the bike that was toppled over next to him, so she bent down to help him, and that's when he grabbed her, beat her, and raped her. The victim told the police everything she could remember about her attacker. She said the man was black with a light complexion. He had a mustache, a beard, and some scratches on his face. Before the attacker left the scene of the crime, he told the victim some vague details
about his life. He told her that he had quote had other white women. The police escort the victims of the hospital where a rape kid has taken and sent off to a crime lab. You're eighteen years old, just graduated from high school. Since you were thirteen, you knew that you wanted to be a firefighter, and now you're doing it. You're attending the fire academy this summer. You're also working at a theme park, collecting tickets running the rides.
It's not the most glamorous job, but hey pays the rent. A few months ago, you moved out of your parents house and into an apartment with your girlfriend. Everyone says you're too young, but you don't care what they think. You're planning your future together. One evening, you finish up your ship at the theme parkain head to the office to clock out. You see a cop there are chatting with your boss. You don't think much of it. There's
always some security or police at the park. But then you see your boss sort of flick his head in your direction, and when you try to leave the office, the cops stops you. He says, hey, let me talk to you for a minute. Have you heard about the rape that took place a few days ago, not too far from here. It's like he knew that this crime had been on your mind. You've been making your girlfriend locked the door behind you every time you leave the house. You say, yes, sir, I did hear about it? Do
you know who did it? The officer says he has some questions and ask you if you'll come to the police station with him. When you get there, the officer takes you into a small room with the table and a few chairs. He says, wait here, you'll stand in as part of a police lineup, and I'll come back and get you in a few minutes. It dawns on you you're not just here to answer questions. You're a suspect in this crime. You call out to the officer, Wait what am I doing here? He says, the rapists
said that he had been with other white women. Don't you live with your white girlfriend? He closes and locks the door behind them. You lean over in your seat and cover your face with your hands. Who would have known information about your personal life and try to use it against you? Was it one of those cops that used to stop by the fire station when you were at the training academy. Maybe they saw your girlfriend dropping
off dinner at the fire station one night. You stop and take a deep breath, reminding yourself that being a black man living with your white girlfriend isn't a crime. At least it's not supposed to be, not anymore, And yet none this seems to matter someone. Some cop already have their eye on you for this very reason, But you didn't do anything wrong, and you're hopeful that the
victim's memory of our attacker will set things straight. What you don't know is that just down the hall from where you're sitting, the woman who called one a few days ago is sitting in front of six pictures. An officer tells her to pick out the face of the man who attacked her. All of the photos set out in front of her are black and white mug shots except for one yours. You've never been in trouble with
the law, and so you don't have a mug shot. Instead, the cop that showed up at your job took a picture of your ID card from the theme park and slipped it into the photo lineup. Yours is not just the only one that's not a mug shot, it's also the only one that's p did it in color, so it immediately grabs the woman's attention. She chooses your photo and says, I think that's him. The officer comes back in to get you. He brings you into a room with a window in it and asks you to stand
in a line with some men. These other men are known as fillers. None of these fillers or potential suspects. The point of them is to see if the victim can identify your face amongst others who are supposed to resemble the suspect. None of these other people's faces were in any of the photos the victims saw except for yours, your color photo I D that's the only photo that
matches the face of anyone in this lineup. There's an officer at the front of the room and he starts barking out orders to you and the fillers stand there and look straight ahead. Now turn to your right, Now turn to your left. You follow the directions that are being shouted out. You can't see her because she's on the other side of a one way mirror, but the victim points you out. She says it's him. I'm sure of it, And that's all the information the cops need
to hear, and you are arrested on the spot. You sit in jail wondering what in the world you're supposed to make of how this woman mistook you for someone else. You look nothing like the witness's original description of her attacker. She'd reported that he had light skin, a mustache, a beard, and scratches on his face. You have dark skin, You're almost always clean shaven. There are no scratches or marks
on your eighteen year old face. How could that picture in her head, the memory of her attacker changed so much in such a short amount of time. What is it about that lineup that made her choose you? You eventually stand trial in front of an all white jury of eight women and four men. You were taught your entire life to trust law enforcement, to believe in this system of justice. The police, officers, judges, lawyers, jurors. They were all there to figure out the truth, to do
the right thing. But that image comes shattering down when the jury comes back and find you guilty of rape, abduction, robbery, and force sodomy. The judge sentences you to two hundred and ten years in prison. Him after the sentences read, you slowly looked behind you. You try to find your mom, your family. You know they're sitting just behind you, but you can't see a foot ahead of you. Everything goes black.
The story you just heard is based on the true events of Marvin Anderson's wrongful conviction six years after he was sentenced to life in prison, another man confessed to attacking the woman who had misidentified Marvin. The man that confessed presented new details to a judge that seemed to prove his guilt in Marvin's innocence. Still, the judge did not vacate marvin sentence. Marvin wrote a letter to the
Innocence Project and they took up his case. After years of work, lawyers of the Innocence Project were finally able to con vinced the judge to compare Marvin's DNA with the DNA from seamen recovered from the victim. When the rape kit was performed, Marvin was not a match, but another man was a match, the man who had confessed to the crime. After fifteen long years in prison, Marvin walked free and became the person to be exonerated based
on DNA evidence. He's since become chief of the Hanover, Virginia Fire Department and serves on the board of the Innocence Project. I'm Josh Juban, civil rights and criminal defense attorney, an innocence ambassador to the Innocence Project in New York. Today. On wrongful conviction junk science, we examine eyewitness testimony. When a witness points to a suspect and says that's the person who committed this crime. There's nothing more convincing to
a jury, but it is dangerous lee inaccurate. Over two thirds of people who are later exonerated based on DNA evidence were convicted based on eyewitness testimony. It may sound like a simple premise, but in order for eyewitness testimony to work and be reliable, we need to rely on our own memories and those of others. But it turns out, just as physical evidence can be manipulated, contaminated, or even planted,
so too can memories. In the early eighties, Professor Wilhelm Once, the father of modern psychology, was giving a lecture at the University of Leipzig in Germany. One of his students attending the lecture was Hugo Munsterberg and Hugo when he heard this lecture, he was hooked. He was so fascinated by psychology and he began to study under the father of psychology himself. After completing his studies, Hugo started working at Harvard University, where he led the Experimental Psychology Lab.
Hugo was especially interested in the concrete, everyday applications of psychology. He wanted to study if and how psychology impacted juries and trial outcomes, and so he began to run experiments on the memory of eyewitnesses. In one of his famous experiments, Hugo tested the memories of both adults and children. He showed them a photo. In it there was a farmer sitting at a table eating some soup. Hugo had his test subjects look closely at the photo, then he took
the photo away. Hugo then asked him open to do questions about it, like what did you see in the photo. To these questions, the witnesses responded, there was a man in the photo eating his soup. Their memories were accurate, but then Hugo started asking what he called suggestive questions. He asked, for example, did you see the stove in the room. Many of the eyewitnesses answered yes, they saw the stove, but there was no stove in the photo.
Hugo found that through asking suggestive questions like these, he was able to get his test subjects to remember dozens of objects in the photo that never existed. In another experiment, Hugo sat at a desk at the front of a room and told his students remember every detail of what I'm about to do. Starting now, with his right hand, Hugo took out a colorful disc and began to spin it.
While staring at the disk that he was spinning with his right hand, he used his left hand to take out a pencil and write something down on a piece of paper. Keeping that disk spinning in his right hand, he used his left hand again to take out a cigarette case, open it, take out a cigarette, shut the case with a loud click, and put it back into
his pocket. At a one hundred students who saw this demonstration, only eighteen of them were able to report what Hugo had done with his left hand, and so Hugo was not only able to show that witnesses might fabricate details of a memory that never existed, but they are also likely to not remember many details of events that happened
right in front of their faces. These experiments also demonstrated that the memories of two different people observing the same event or photo could be wildly different, despite the fact that they had no stake in lyne or making the outcome of the events. A periotive happened one way or another. Hugo also concluded that the witness's own claim of certainty
didn't necessarily mean that their memories were more accurate. A witness might say, for example, that they were absolutely certain that there was a stove in the photo, or that he or she was certain that all Hugo did was spin a disc and his right hand. But even as they claimed certainty, there was proof that their memories were incorrect.
When his book on these experiments was published in The New York Times wrote that his studies had the potential to revolutionize courtroom procedure and to quote, bring light and order in domains were all or almost all is darkness and confusion. But that's not what happened, because Hugo also had many critics who scoffed at his attempt to apply psychology to the courtroom, and so courtroom procedure around eyewitness
testimony was not completely evolutionized. To this day, countless innocent men and women are sent to prison based on faulty eyewitness testimony. Over half a century after Hugo's research was mocked, psychologist Elizabeth Loft this took another look at eyewitness testimony with a more modern take on Hugo's experiments. She was able to prove just how unreliable eyewitness testimony is and why it shouldn't be trusted as the gold standard of
evidence in a courtroom or in a police lineup. Many people, unfortunately, believe that memory works like a recording device. You you take in the information, you record it, you just play it back the way some kind of video recorder would work, And that is not really the way memory works. What happens when we're remembering something is we we tend to take bits and pieces of experience, sometimes from different times of places. We bring it together and we construct a memory.
So I like to think of memory a little bit more, not like a recording device, but more like a Wikipedia page. You can go in there and edit it, but so can other people. Today on our show, we're speaking with renowned psychologist Elizabeth Loft. This Elizabeth is currently a professor at the University of California, Irvine. She studies human memory, specifically the malleability of memory, which of course is a
huge factor in cases where eyewitness testimony is used as evidence. So, Elizabeth, can you tell us about some of the experiments that you worked on to study memories of eyewitnesses. You know, one of the ways that I and my collaborators have studied memory in hundreds of studies you know probably now and participants over the course of my career. One of the ways that we study memory is will show people a simulated crime. For example, we will then expose people
to some new information about that crime. So they might have seen a bad guy take a wallet out of somebody's purse and he's wearing a green jacket, but they then get misinformation from another witness or from a leading question that the jacket was brown. And finally, we will ask our witnesses, tell me exactly what you saw, give me as much detail as you can remember, and many of them will then remember that the jacket was brown and not green, or we can make them believe the
bad guy had curly hair instead of straight hair. All by exposing people to new information misleading information, it impairs our own memory, and this is now referred to in the psychological literature as the misinformation effect. So give me another example. What are some other experiments you did where misinformation just kind of gets slipped into the person's memory
with without them even knowing it. We've shown people a simulated accident, a car goes through an intersection with a yield sign and then ends up hitting up pedestrian and pedestrian falls over. A police officer comes to tend to the pedestrian who is lying down on the on the ground. Afterwards, are our witnesses are asked a series of questions, and one of those questions might be did another car pass the red dots and when it was at the intersection
with the stop sign. Now, that is a very clever question, just so you can appreciate the cleverness you as the wind. Just think I'm asking you about whether another car passed while the dots and was stopped. You revisualized the scene, and in your visualization you might put in a stop sign that I've mentioned as part of the question. You think you're answering about whether another car stopped, But this stop sign kind of invade your consciousness, almost like a
trojan horse. You don't even detect that it's coming. And after that, many people will then claim I saw a stop sign at that intersection, And you can show them to scenes the scene with a stop sign or the scene with a yield sign. They'll pick the one with the stop sign. They have succumbed to the question and fallen sway to its suggestion, and now it appears as if this is their memory. Now I want to get
back to the way cops influenza witness. UM. I've dealt with cases where the cops know who the suspect is and do things either consciously or even unconsciously. I guess to encourage the witness to choose the person that they believe is their suspect. Have you dealt with anything like that in your research. One of my favorite examples the case I testified in uh in California. There's a crime,
the eyewitness has shown a six pack six photographs. The eyewitness says, I I really don't recognize anybody, and the officer says, wait a minute, I see your eyes drifting down to number six. What's going on there? Eventually number six gets seized upon identified, and that's the person who gets prosecuted. So there's a highly suggestive thing going on here. I'm willing to get, certainly to give these officers the benefit of the doubt and say they they're not even
aware in a way of their own influence. UM, And and that a lot of what's happening is kind of unwitting. So look I'm an alleged expert in jury selection, and people are always saying to me, like, how does this affect you? Are you always trying to psychoanalyze me? So tell me a little bit about how this, you know, deep knowledge of memory impacts you. Do you find yourself
like not trusting your own memory at times? Well, the one experience that I do have from all these decades of doing this kind of work is I understand, um that along with those like sort of bits of truth are bits of fiction intermingled in there. And I'm not bothered by that. I understand that's part of the the malleable nature of memory. I think what this acceptance has done for me is it makes me a little bit more tolerant of the mistakes that friends make, or family
members make, or even I myself might make. I don't immediately assume somebody's a big, fat liar. They could honestly have a false memory. And I think it's a kind of kinder way to feel about people. Okay, so that's pretty interesting. Do you think this same kindness, as you refer to it, that you offer, let's say, your friends, your family, even yourself, do you think we should offer
witnesses the same kind of kindness in court cases. Do you want to call these people a liar or do you want to accept the fact that maybe some kind of process has led them to develop a set of beliefs and things that feel to them like memory. And it is kinder even in a court case. I think sometimes for for lawyers who are challenging these memories to talk about them as potentially false memories rather than talk
about the accuser as being a big fat liar. So you're an expert witness in a lot of cases that depend on eyewitness testimony. You know, we've talked a lot throughout the course of this podcast about how some expert witnesses aren't basing their testimony on good science or facts. But you're not that kind of witness. I mean, you've been studying memory for years and years, and you've done experiments and um, you know, tested this with thousands of participants.
You have a lot of data to back up what you're testifying to in court. But tell me, have you ever heard of witness testifying in court or read their testimony and it kind of made you think, well, this isn't science at all. They're actually twisting this so much that it's more like junk science. I guess what I've seen happen in some cases, and this bothers me where I think opposing experts are introducing junk science. It's about trauma.
They want to introduce a science that basically says traumatic memories are are completely different. Traumatic memories, you know, are stored in the body. Traumatic memories can be relied on traumatic memories that kind of don't have these same problems. In fact, traumatic memories operate under similar in similar ways. They fade over time, they can be influenced by post
event information. There. There's just lots of features of memory that are true, whether you're trying to remember something that's upsetting or whether you're trying to remember something that is a little bit um more new role and less emotional. You see this in the movies all the time. They're saying something like, I was so frightened when this happened. I'll never forget that face as long as I live.
That's an expression of the belief that this traumatic memory is sort of imprinted in the brain and it is reliably and solidly there and you just need to read it out. And that is not the way things work with with memory in general, or even traumatic memories. So tell us more about that, because I do think that when we hear about someone who has been, you know, raped, or there's been a violent attack, our instinct is that we should believe them, no matter what, right like, why
would somebody make this up? So how do we reconcile the desire to believe a victim, or the natural tendency to believe a victim, with the knowledge that memories just aren't the most reliable form of evidence. I think the way we reconcile all this is that when there is somebody with an accusation, we we certainly listen to it and examine it. And we don't want to uncritically accept
every accusation, no matter how dubious. And we don't want to routinely reject an accusation just because we don't like how it sounds. So I do think there there is a way to reconcile these two seemingly conflictual driving forces. But I don't think we forego our democratic principles and and and forget about the fact that that we're proud to have a legal system that respects the rights of
the accused to have a defense. Yeah, I mean it's a tough delem right, because I've had that instance just last week where you know, I am defending someone who I believe to be innocent. And you know, I when when people hear about the case, or you tell them about the case, you know at least what's public knowledge. You know, the reaction is, well, why would somebody make up, um, you know, a accusation of sexual assault for instance. But the reality is that they may not be consciously making
it up. It may not be a conscious lie. It may just be that their perception um and they're what they think is their reliable memory is just not correct. Now, look, I have my own ideas, and you know, the Innocence Project, as you know, has done a ton of policy work around this and trying to get reform um achieved in law enforcement across the country and the way they go about, um instituting line ups and you know, eyewitness identifications. But
you tell tell me what you think. What do you think is a way that we can reform the system so that eyewitness identification would be more accurate. First of all, one thing that is important when law enforcement is conducting some kind of test, whether it's with photographs or whether it's with a live lineup, How do you conduct the test? What instruction do you give to the witness who conducts the test? Who were the fillers? The people who are put in the set of photos are put in the
lineup along with your suspect. Each of these issues is important, and there are best practices that have been devised by scientists and very thoughtful people in the legal field about what those best practices should be. So best practice, the person conducting the test should not know who the suspect is. That's one of the most important things that in other words, the person conducting the test should It should be what's
called a double blind test. The witness doesn't know who the suspect is and the person conducting the test doesn't know who the suspect is. And why that's important is because that means that the person conducting the test cannot inadvertently queue the witness as to who to pick, and the investigator cannot give feedback to the witness, cannot say, good job, that's our suspect, um, that's who we think
did at another witness picked that same person. This kind of feedback artificially inflates the confidence of the witness and makes them a more powerful witness at the time of the trial, more impervious to cross examination. It's not a fair situation, so blind testing is one simple reform that's been suggested. How about the instruction you give to the witness. It's very important to have an unbiased instruction to say to the witness, you know the person may or may
not be in this lineup. It's just as important to exonerate the innocent as to find the guilty person. You're trying to take pressure off of the witness. Take the pressure off so they don't feel they've got to pick someone anyone, uh, in order to solve the case. So that's why that instruction is important. Then there are other issues like who you put into the lineup. What should
the fillers look like? Do they just resemble the suspect? No, they should also resemble the description that the witness gave. So if the witness said, you know a skinny guy with medium length hair, um, you want basically skinny people with medium length hair fitting the description, not just fitting the characteristics of the suspect. What is the biggest takeaway that you think our listeners should have from today's episode.
Just because somebody tells you something and they say it with a lot of detail, and they say it with confidence, and they even show emotion when they tell you it doesn't mean it really happened. It doesn't mean it really happened exactly that way. You need independent corroboration to know whether you're dealing with an authentic memory or one that is the product of some other process imagination, suggestion, misinterpreting dreams, or some other non authentic process. We always try to
end each episode with a call to action. So I've been thinking about the lessons for today's interview with Elizabeth and just how interesting, informative, and really eye opening it's
been when someone's freedom hangs in the balance. We should leave open the possibility that when someone takes a witness stand and claims to have watched a crime unfold or says they are sure they saw the defendant leaving the scene of a crime, they may not be accurately conveying what happened, and not because they're intentionally lying or even shading the truth, but their memory may have been influenced
in some way. So considered the surrounding circumstances, whether they were fed information, if there was this suggestion about who may have committed the crime by a member of law enforcement, if the methods used to quote unquote identify a perpetrator or influenced in a way that made the accused stand out. And maybe it's not the most reassuring thing that in an error, When it seems that misinformation is rather popular and it's sometimes difficult to know what the truth actually is.
Here is yet another reason to doubt our perception of reality. But remember, your willingness to remain open to all credible possibilities may in fact prevent the next wrongful conviction. Next week, on our final episode of the season, we'll explore how what's known as shaking baby syndrome has been used to falsely implicate people in crimes they did not commit. We'll discuss this with executive director of the Center for Integrity
and Forensic Sciences, Kate Judson. Wrongful Conviction Junk Science is a production of Lava for Good Podcasts in association with Signal Company Number One. Thanks to our executive producer Jason Flom and the team, it's Signal Company number One Executive producer Kevin Wardis and senior producers care Cornaber and Britt's Angler. Our music was composed by j Ralph. You can follow
me on Instagram at dubin Dot. Josh followed the Wrongful Conviction podcast on Facebook and on Instagram at Wrongful Conviction and on Twitter at wrong Conviction